IN THE LAND COURT OF TONGA
NUKU’ALOFA REGISTRY

LA 1/05

BETWEEN:

MRS KOLOLIA OPRA MAKA
Plaintiff

AND:

MRS FOLOLA KAINGA
Defendant

HEARD AT NUKU’ALOFA BEFORE HON CHIEF JUSTICE WEBSTER WITH ASSESSOR GEORGE BLAKE ON 5 OCTOBER & 2 NOVEMBER 2005

Counsel:

Plaintiff: Mr Kaufusi
Defendant: Mr Tu’utafaiva

EXPANDED WRITTEN REASONS FOR DECISION GIVEN ORALLY ON 3 NOVEMBER 2005

Preliminary

The Plaintiff Mrs Kololia Opra Maka sought to evict the Defendant Mrs Folola Kainga from a building on the allotment Navosa in Nuku’alofa. The Plaintiff inherited that allotment as widow of her husband Lisiate Maka. She says that it was agreed orally that the tenancy of the building was to continue until she and Lisiate Maka wanted the Defendant and her then husband Sione Kainga to vacate the land, when the building the Defendant and her husband had built would remain.

The Defendant says that she and her husband Sione Kainga built the building on the oral agreement that the tenancy would continue until she and her husband felt that they had had enough of running their business from it, when the building would become the property of the Plaintiff. The Defendant said that she had not yet had enough of running the business and so wished the tenancy to continue.

Evidence and submissions

Each party gave evidence on her own behalf. The Plaintiff also submitted documentary productions.

On conclusion of the evidence submissions were made for the parties in support of their cases.

Jurisdiction

As an alternative ground of defence, it was submitted for the Defendant that the question to be determined by the Court is not a dispute, claim or question of title affecting the Plaintiff’s land or her interest in it, so that the Land Court has no jurisdiction in the matter.

Section 149(1) of the Land Act (Cap 132), which lays down the jurisdiction of the Land Court, was amended by Act 3 of 1997 by the addition of a further paragraph:

“149. (1) The Court shall have jurisdiction –

(a) …

(e) to hear and determine any question or amount of damages, loss, compensation, mesne profit, rent or claim in respect of any allotment, lease or sub-lease, permit or interests of any kind in any land.”

The question thus arises of the proper characterisation of the claims made by the Plaintiff, to be ascertained on an analysis of the nature of the claims made in the Statement of Claim: Piukala v Fonohema [2002] TOCA 3 (CA) (23 July 2002), which case related to an entire town allotment. In Mangisi v Koloamatangi [1999] TOCA 9 (CA) (23 July 1999), to which Counsel for the Defendant referred, the Court said:

“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. …

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 (CA unreported, 7 August 1998).”

The present case, in which the Plaintiff seeks to evict the Defendant from a building on her land, concerns very similar circumstances to the Mangisi case. It is clear that in this case also, whatever the details of the contract, it was not a lease. It conferred a permission or licence to operate a business in the building constructed by the Defendant and her husband at their own expense, and a licence to use that building. This Court therefore considers that the agreement between the respective husbands of the Plaintiff and the Defendant did not confer an interest of any kind in land. This Court is bound by the decision of the Court of Appeal in the Mangisi case.

This is therefore not a case where the Court is asked to hear and determine a question or a claim in respect of an interest of some kind in land, so the Land Court has no jurisdiction. This case falls to be distinguished from Piukala v Fonohema; and from the recent decision of this Court in Tonga Industries Traders Ltd v Shell Co Pacific Islands Ltd (LA 2/05, 15.6.05), where, as well as a building, an interest in land was clearly involved.

Substantive claim

In case I am wrong in that view, and as I have heard all the evidence in the substantive action, I reached a decision on the substantive position also.

The substantive case turns on what the arrangements were between the parties and their respective husbands (both now deceased). For simplicity when I refer to the Plaintiff or the Defendant, that should if relevant be taken to include their deceased husbands also.

The key issue is what was agreed between the parties as to when the tenancy agreement would terminate. The Plaintiff said that the tenancy was to continue until she and her then husband Lisiate Maka wanted the Defendant and her then husband Sione Kainga to vacate the land, when the store the Defendant and her then husband had built would remain. On the other hand the Defendant said that the tenancy would continue until she and her then husband felt that they had had enough of running the business, when the store would become the property of the Plaintiff.

The background was that the Defendant and her then husband had previously had a store on the allotment Navosa at the corner of Taufa’ahau Road and Laifone Road, owned by the Plaintiff’s now deceased husband Lisiate Maka. That store had been burned down in a fire in 1997 and the Defendant and her husband had moved to a store further down Taufa’ahau Road opposite the Nuku’alofa GPS.

Then in 1999 after the Plaintiff and the Defendant had met by chance, the Plaintiff’s husband had asked if the Defendant and her then husband could get $2,000 for him to go to Australia for his sister’s funeral (which the Plaintiff accepted in evidence). The Defendant’s husband had said yes and asked if they could build a store on Navosa, to which Lisiate Maka had agreed. The Defendant and her then husband had built the store later that year, they said at a cost of $30,000.

There is no written agreement and the Plaintiff and Defendant each gave evidence on what the agreement was. The case therefore turns on the respective credibility of these 2 witnesses.

The Defendant came over as much more credible and reliable, occasionally conceding points in her evidence, and her side of the story seems more feasible and probable. I have to say that while the Defendant did seem to get muddled with dates and details in cross-examination, her evidence overall had a ring of truth about it and I found her generally a credible and reliable witness.

On the other hand the Plaintiff did not seem as straightforward and seldom gave a simple answer to a question, particularly in cross-examination. I therefore regret that I was unable to accept her as an entirely credible and reliable witness.

Overall therefore, where there was a conflict of evidence I tended to prefer the evidence of the Defendant.

The Defendant said that the agreement was that she and her husband would build their store on the corner of the allotment and they could remain there as long as they liked until she and her then husband felt that they had had enough, when the store would become the property of the Plaintiff’s husband.

On the other hand the Plaintiff said that the agreement was that the Defendant and her husband could continue to occupy the building until the Plaintiff and her then husband wanted her to vacate the land, when the store building by the Defendant and her husband would remain. It has to be said that the Court found that a very implausible and unlikely arrangement for any business person to accept. As the Defendant said in evidence, why would they construct a building if the Plaintiff’s husband could evict them at any time?

The Plaintiff claimed that the Defendant and her husband had been asking them to rebuild their store (after it was burned down) but the Plaintiff’s husband did not accept that, as he wanted to develop the site. When the Plaintiff’s husband eventually accepted, she said he made it clear that it could only be on a temporary basis which could be terminated on short notice.

But the store which the Defendant built is a permanent building, not a temporary structure, and the Court accepted the Defendant’s figure of $30,000 for its cost, rather than the $8,000 stated by the Plaintiff. There was no evidence that when the Plaintiff or her husband saw the building, they remonstrated with the Defendant and said it was only to be a temporary structure. The Court therefore inferred that the Plaintiff’s evidence about repeated visits by the Defendant to obtain the tenancy (which the Defendant denied) did not support her claim.

It was important that the Court found that at the meeting when the arrangement was reached (which took place at the invitation of the Plaintiff) the Plaintiff’s husband sought and received agreement from the Defendant’s husband for an immediate payment to the Plaintiff’s husband of $2,000 so that he could go to Australia for the funeral of a close relative. It appeared to the Court that, in light of this payment, the Plaintiff’s husband would not have imposed strict conditions on the Defendant and would have been much more likely to allow them tenure on the basis put forward by the Defendant ie as long as they wished, provided the building eventually reverted to the Plaintiff’s husband.

In addition the Court found that the Defendant and her husband would have been unlikely to leave the shop they were then operating opposite the Government Primary School at Nuku’alofa for an arrangement which would have been only temporary and indefinite at the whim of the Plaintiff and her husband.

These are the principal reasons on which, on the balance of probabilities, the Court therefore accepted the Defendant’s account of the agreement between the parties.

The Court therefore finds that the oral agreement between the Plaintiff’s husband and the Defendant and her husband in 1998/1999 was that the Defendant and her husband could build a store on a corner of Navosa and could remain there until they had had enough of running their business there, when the building would become the property of the Plaintiff’s husband. The rent is now $500 per month.

Illegality

The further alternative submission by the Defendant’s Counsel of illegality in terms of section 13 of the Land Act is not accepted, substantially for the reasons given in Tonga Industries Traders Ltd v Shell Co Pacific Islands Ltd (LA 2/05, 15.6.05).

Conclusion

The Land Court has no jurisdiction to hear and determine the Plaintiff’s claim to evict the Defendant, which therefore fails and is dismissed with costs to the Defendant as agreed or taxed.

Even if that is wrong, in terms of the agreement for the tenancy the Defendant has not yet had enough of running the business which is conducted from the building which is the subject of the tenancy, so in any event the Plaintiff’s claim fails and is dismissed with costs to the Defendant as agreed or taxed.

R M Webster
Chief Justice

4 January 2006