IN THE LAND COURT OF TONGA

NUKU’AOFA REGISTRY

LA 44 of 2017

BETWEEN	:		SIOSIFA PALELEI

Plaintiff

AND		:		LATA ‘I FATAI PALELEI LENATI

Defendant

BEFORE PRESIDENT PAULSEN AND ASSESSOR 

Counsel:	Mr. S Taione for the plaintiff.  
Mrs. P Tupou for the defendant.  

Hearing:		21-22 and 25 March 2018 
Date of Ruling:	3 April 2018

RULING 

The claim

[1]	This is the second action between the same parties.  In the first action (LA16 of 2017) the defendant in this action (Lata) challenged the grant of a town allotment at Ma’ufanga to the plaintiff (Siosifa).  In a ruling of 7 August 2017 I directed the Minister to cancel Siosifa’s grant and to make a fresh decision on Siosifa’s application for the town allotment after giving Lata an opportunity to be heard.  The Minister cancelled Siosifa’s grant and then heard from both Lata and Siosifa.  The Minister then issued a fresh decision granting the allotment again to Siosifa.  Lata was required to vacate the allotment but she refuses to leave.  She argues that Siosifa is estopped from recovering the allotment from her.  A second defence that Siosifa’s claim is time barred was abandoned. 
The facts
[2]	Most of the basic facts are set out in my first ruling in LA16 of 2017 but for the benefit of the reader I will set them all out again with further evidence given in this action.
[3]	The story begins with one Siaosi Palelei (Siaosi).  Siaosi had two daughters by his first wife and four daughters by ‘Uheina, his second wife.  Lata is the second daughter of Siaosi’s marriage to ‘Uheina.  Siaosi also had an illegitimate son named Paula Palelei (Paula).  Paula has three sons.  Siosifa is Paula’s youngest son.  Lata and Paula are half siblings and Lata is Siosifa’s aunt.
[4]	Siaosi was granted a town allotment at Ma’ufanga known as Matakivaha’i.  It was registered in 1956.  Siaosi and his family lived in a house which was gifted to him and relocated on to his allotment (Siaosi’s house).  
[5]	Lata was born in 1965 and is 53 years old.  She grew up on Matakivaha’i and is now married.  She still lives on the land in Siaosi’s house.  She raised her family there. 
[6]	Paula moved to Matakivaha’i in around 1979.  In the first action Paula did not give evidence and it was said that he was chased off his uncle’s land before moving to Matakivaha’i.  In this action Paula and his wife Latu (the mother of Siosifa) gave evidence.  They denied Paula was chased off his uncle’s land but whether that is so makes no difference to the result of this action.  Siaosi and ‘Uheina agreed that Paula and his family could live at Matakivaha’i.  Paula’s house was moved on to the land.  
[7]	Siosifa was born in 1984.  He is now 34 years old.  He too grew up on the land.  He has lived there his whole life apart, it seems, for a period when he went to University in Fiji between 2006 and 2008.
[8]	Siaosi retired in around 1985.  He decided to stand for the Legislative Assembly as a candidate in ‘Eua.  To advance this intention he arranged to exchange Matakivaha’i for Paula’s town allotment at ‘Eua.  The exchange was approved by Cabinet.  Paula was registered as the holder of Matakivaha’i on 24 October 1986.  Siaosi was registered as the holder of the land in ‘Eua.  
[9]	Siaosi became ill and never stood for election.  Siaosi, ‘Uheina and their daughters remained living on Matakivaha’i.  Siaosi was no longer the holder of the land and he could only have remained on the land with Paula’s permission.  He did not ask Paula that Matakivaha’i be returned to him.  I found in the first action that ‘Uheina was not happy about the exchange and told Siaosi to reverse it and that he said it could not be done and assured his family that he would see to it that no one would chase them from their land.  Paula was not party to those discussions and I find that he did not know of them.  
[10]	Siaosi asked Paula to grant a lease of that portion of Matakivaha’i where Siaosi’s house is located.  Paula agreed to grant the lease.  He felt it was right that he honour his father’s instructions.  On 19 October 1990 Cabinet approval was obtained to the grant of a lease over an area of 809.4m² (approximately one half of the allotment) for 20 years in favour of Siaosi’s eldest daughter Talahiva.  The lease was not registered until 22 February 1996 and was for a 20 year term from 22 February 1996 to 21 February 2016.  The evidence satisfied me that Lata was aware of the lease and its 20 year term and also its purpose.  Paula said, and I have no hesitation in accepting, that the purpose of the lease was so that Siaosi’s daughters had somewhere to live until they married when they would move away and the land would be returned to him.  Consistent with this Siaosi required the lease to be for 20 years as it could be expected that his daughters would be married within 20 years (as indeed they all were).  I find that the lease was registered in Talahiva’s name only because she was the eldest daughter but that the lease was intended to benefit all the daughters.  
[11]	Mrs. Tupou tried to make something of the fact that at the time the lease was registered all of the daughters other than Lata were already married.  That does not alter my view as to the purpose of the lease.  The discussions between Siaosi and Paula about the granting of the lease must have occurred in or before 1990 (when Cabinet approval to the lease was obtained).  I believe it more likely than not that the discussions would have occurred in around 1986 when ‘Uheina learned of the land exchange.  The evidence was that it was not until 1991 that Talahiva married.  The youngest daughter married in 1995 and Lata was the last to marry after the registration of the lease in 1996.  Unlike her sisters when Lata married she remained living with her parents whilst her sisters had all chosen to move away.  Lata and her husband raised their family on the land.  She has continued to live in Siaosi’s house until the present day. 
[12]	It is not at all strange that Paula did not ask Lata to leave the land when she married.  There was no reason at all for him to do so.  Paula was clearly happy that Siaosi and ‘Uheina remained on the land and Lata was living with them in Siaosi’s house.  The relations between the parties was good and in any case Paula had granted the lease and understood that Siaosi’s daughters were entitled to live on the land until 2016.
[13]	Siaosi died in 1999.  ‘Uheina died in 2006.  Lata says that at a feast following ‘Uheina’s funeral Paula gave a speech and said that Siaosi’s daughters were free to do what they liked with Siaosi’s house and could renovate the house and that no one would ever chase them off the land.  I do not accept that he said any of those things for reasons I shall set out later in this ruling.
[14]	Lata and her husband made renovations to Siaosi’s house in approximately 2008 to 2010.  Most of the work was carried out by Matalave Mohuanga and others that he organised for the purpose.  The extent, cost and reasons for the renovation work are disputed and I shall return to these matters later in the ruling.  In addition, in around 2010 a shop that Lata operates on the land was damaged in a cyclone and had to be rebuilt.  Paula asked Lata’s husband to move the shop to allow access to his house.  Paula was upset that this did not happen and he argued with Lata.  There is a dispute as to what was said but for present purposes that is of little significance.  From this point the relationship between the parties soured and has never been restored.  There was evidence about other disputes that have arisen.  The details were sketchy but it was clear to me that the relationship between Lata and Paula and his family (including Siosifa) has broken down.  Although Lata denies this the fact that the parties do not freely converse with each other and Siosifa and Lata have now been involved in two actions before the Land Court leaves little doubt that it is so.
[15]	On 10 April 2012 Paula wrote to the Minister of Lands to surrender part of Matakivaha’i (the area subject to the lease) in favour of Siosifa.  Paula’s letter made no mention of the lease or of Lata’s occupation.  The application was not processed because the land was subject to a mortgage.  Following the discharge of the mortgage Cabinet approved the surrender on 17 October 2014.  On 11 November 2014 a public notice was published notifying of the surrender and calling for any claims to be made to the land.  No claims were made.  On 26 January 2016 Siosifa lodged an application to be granted the land.  The lease had not then expired.  It had expired by 7 March 2016 when the Minister gave his consent to the grant.  On 26 July 2016 Siosifa was registered as the holder of the land (Deed of Grant Vol 435 Folio 29).
[16]	Lata was not aware of Paula’s intention to surrender the land and considers that she should have been told.  Her case was advanced on the basis that the reason for the surrender was so that Siosifa could take steps to remove her from the land.  Mrs. Tupou submitted that was the effect of Paula’s evidence but I have read the transcript closely and do not accept that submission.  Paula did not advise Lata about the surrender because their relationship was bad and had been bad since 2010.  Paula believed that Lata was entitled to live on the land until the expiry of the lease.  Paula and Latu, their sons and their son’s wives and children (a total of ten people) are living in Paula’s house and it is overcrowded.  Paula and Latu intended that once Lata moved off the land Siosifa would build his house and move into it with his family relieving their overcrowded circumstances.  As Paula and Latu had no daughters they are also concerned that their sons live near to them to look after them in their old age.  All of this is entirely understandable.  Paula was not in any event obliged to advise Lata of his intentions because his surrender of the land could not affect the lease (section 59 of the Land Act). 
[17]	After Siosifa was registered as the holder of the land Latu informed Lata that her family would need to move.  Lata wrote to the Minister asking him to cancel Siosifa’s grant on 30 January 2017.  She also wrote to Paula on 9 February 2017 asking him to return the land.  Paula responded expressing the hope that Lata would vacate the land.  On 28 March 2017 Siosifa’s lawyers wrote to Lata giving her 14 days to vacate or they would proceed to Court and lock up the house to prevent her and her family from entering it.  As a result Lata commenced the action LA16 of 2017 challenging Siosifa’s grant.  She was successful in that action and Siosifa’s registration was cancelled but it is important to note that there was no finding that Lata was entitled to the land.  At paragraph 41 of my ruling I said that I was not expressing a view on how the Minister might resolve the competing claims of Siosifa and Lata as that was a matter entirely for the Minister to decide.
[18]	The Minister heard from both Siosifa and Lata before arriving at a decision to again grant the allotment to Siosifa.  Although in her written submissions Mrs. Tupou took issue with the Minister’s decision he was not joined as a party and in her amended statement of claim Lata did not seek the cancellation of Siosifa’s grant.  The Minister’s decision was conveyed to Lata in a letter of 23 August 2017 and she was advised that the Minister would allow her two months to vacate the land and that Siosifa would be entitled to apply for a grant on 24 October 2017.
[19]	Siosifa applied for the grant on 24 October 2017 and the land was registered in his name on 5 December 2017.  Siosifa’s lawyers wrote to Lata on 5 December 2017 giving her until 8 December 2017 to vacate the land.  Lata did not vacate and these proceedings were commenced.
[20]	Siosifa has purchased two containers of materials to build his house on the land and at the time of filing this proceeding he sought an interim injunction to remove Lata.  That application was not pursued in favour of an early hearing date.
	Estoppel 
[21]	Lata relies only upon the defence of estoppel by acquiescence.  Mrs. Tupou submits that Paula encouraged Lata to occupy and improve the land and led her to believe that she would not be removed from the land during her lifetime and that it would unconscionable for him to now remove her.  In reliance upon the decision of Nginingini v Nginingini (Unreported, Land Court, LA 16 of 2016, 30 January 2018, Paulsen P) she also argues that Siosifa is bound by Paula’s representations and conduct and estopped from evicting Lata (paragraph 3 of her submissions). 
[22]	In Siasi Tokaikolo 'Ia Kalaisi v Sione H. Maile & Ors (Unreported, Land Court of Tonga, LA 19/15, 9 November 16, Paulsen P) at [106] I identified the matters that must be proven to establish an estoppel by acquiescence as follows:
	(a)	An expectation or belief by person A that is encouraged 	by person B as to the property of person B, such as 	that 	the property is or will be the property of person A or 	that he has some other interest in it;
	(b)	Knowledge by person B of person A’s expectation or 	belief;
	(c)	Some activity by person A in reliance upon his 	expectation or belief such as the expenditure of 	money upon the property;
	(d)	The interest or expectation is one that person B 	could lawfully satisfy;
	(e)	Encouragement by person B of the activities of 	person A or at least knowledge of those activities with 	a failure to assert his title to the property when they 	are adverse to it so that it would be unconscionable, 	inequitable or unjust for him to rely upon his legal 	rights to defeat the expectation encouraged by his 	conduct or lack of it.
[23]	In Nginingini (at [39]-[44]) I held that that if a claimant’s belief as to some interest or right over land has been created by a landholder an estoppel might also arise against a third party who has acquired an interest in the land from the landholder where (1) that third party acquired their interest with knowledge (for which see paragraph 40 of the ruling) of the circumstances giving rise to the claimant’s rights and (2) where it would be unconscionable for the third party to assert his/her legal rights against the claimant.  These are the principles that Mrs. Tupou is relying on to argue that an estoppel arises against Siosifa.
	Discussion
[24]	Applying the principles in Nginingini (supra) I approach Lata’s defence in two parts.  First, whether Paula created an expectation or encouraged a belief in Lata that would as against him raise an equity entitling her to stay on the land for her lifetime.  Secondly, whether any equity arising also binds Siosifa now that Paula is no longer the holder of the land. 
	The position of Paula
[25]	No equity arising out of acquiescence entitling Lata to stay on the land during her lifetime could be made out against Paula because:
	(a)	Paula never created an expectation or belief in Lata that she 	could remain on the land during her lifetime;
	(b)	Paula had no knowledge that Lata possessed an expectation 	or belief that she could remain on the land during her 	lifetime;
	(c)	Lata did not act to her detriment in reliance upon her 	expectation that she could remain on the land; and
(d)	It would not have been unconscionable for Paula to have relied upon his legal rights to evict Lata following the expiry of the lease.
	Expectation or belief encouraged by Paula?
[26]	Mrs. Tupou submits that Lata relied upon a promise made by Siaosi that no one would chase her off the land.  Paula was not aware of any such promise and it cannot bind him.  Mrs. Tupou then submits that Siaosi’s promise was ‘echoed’ by Paula in three respects.  First, that Paula promised Lata and her sisters at ‘Uheina’s funeral that they could renovate Siaosi’s house and no one would chase them from the land.  Secondly, Paula did nothing to suggest to Lata that she could not occupy the land during her lifetime.  Thirdly, that Paula encouraged her to do renovations to Siaosi’s house and to the garage and rebuild the shop.  I will deal with each in turn. 
[27]	Paula made no promise to Lata and her sisters at ‘Uheina’s funeral.  Paula and Latu deny that any promise was made.  I found them both to be thoughtful and credible witnesses.  Despite being elderly (and Paula is ill) they were firm and unshaken in their evidence that Paula made no promise and I believe them.  Lata by comparison was not a plausible witness.  Her evidence was incorrect or exaggerated in a number of respects.  Examples include her evidence of the extent of Paula’s involvement in the renovations, the use of Paula’s timber for the renovations (in respect of which her evidence conflicted with the evidence of her witness Matalave Mohuanga) and her quite implausible suggestion that the parties could live in peace on the land.  Importantly, Lata acknowledged that she made no mention of Paula’s promise in the first action.  I consider that if a promise had been made Lata would have mentioned it.  I do not accept Mrs. Tupou’s submission that Lata did not do so because the focus of that action was the Minister’s failure to consult.  The fact of such a promise would have been directly relevant to that issue.  Had a promise been made it would have countered the case for the Minister that Lata had no right to be consulted before the grant to Siosifa was made as there was no promise from Paula that she could live on the land (see para 38 of the ruling).  Importantly also, when Mrs. Tupou wrote to the Minister on 20 September 2017 challenging the latest grant to Siosifa she did not mention Paula’s promise but rather wrote:
..it was submitted on [Lata’s] behalf when you issued your decision that she be allowed to reside on the land until her death as was promised to her by her father.
and
For clarity, she did not live there on the basis of her sister’s, she was living there on her father’s promise and as her father’s daughter.
[28]	Lata called Matalave Mohuanga as a witness to give evidence about what was said at the funeral.  His evidence was that Paula said ‘you girls are free to renovate your house and to live there’.  Having heard Paula and Latu I unequivocally prefer their evidence and am satisfied nothing of the sort was said.  But had those words been uttered they could not be taken to mean that Lata could remain on the land for life.  I fully agree with the words of Scott P in Mafile’o v Muhupeatau (Unreported, Land Court LA 5 of 2009, 15 July 2011 Scott LCJ) at [31] that:
	In view of the consequences that flow from the recognition of an estoppel it is obviously crucial that the representations which are said to have led to the creation of the estoppel should precisely be defined. A party should not be estopped on an ambiguity (Legione v Hately (1983) 152 CLR 406).
[29]	The submission that Paula did nothing to suggest to Lata or her sisters that they could not occupy the land during their lifetimes has no force.  Given the existence of the lease there was no reason for Paula to do so.  Lata was aware of the lease and its term and she could not reasonably have inferred from Paula’s silence a representation of any kind. 
[30]	I do not accept either Mrs. Tupou’s submission that Paula encouraged Lata to believe that she could live on the land for life by allowing her to do the renovations and rebuild the shop.  Lata and her husband did the work because Siaosi’s house was old and in urgent need of repair/renovation and they had nowhere else to go.  In the case of the shop it had to be rebuilt because it had fallen down in a cyclone and was source of income for the family.  If Paula provided some timber for their use (the quantity and use of which was not proven to my satisfaction) it was an act of kindness amongst family who were then on good terms.  Paula had no reason or right to discourage Lata from doing the renovations or repairing the shop when he had no claim on Siaosi’s house and to his knowledge she was entitled to occupy the land for the term of the lease.  He did not therefore ‘allow’ the renovations or the expenditure of money on them.  His failure to object to the renovations encouraged no belief or expectation in Lata.
	Paula had no knowledge of Lata’s belief
[31]	Paula did not know of the promise Siaosi made to his daughters.  Siaosi asked him to grant a lease for 20 years.  He understood that upon the expiry of the lease the land would be returned to him.  Lata never told him of her belief that she could live on the land during her lifetime.  Viewed in proper context nothing that Lata did or said would have alerted Paula to her belief that she could remain on the land for life. 
	Lata did not act in reliance upon her belief 
[32]	The renovations to Siaosi’s house were undertaken not because of anything Paula did or said but because it was old, leaking and rotting and in urgent need of repair and renovation.  Latu gave evidence that she saw buckets in the house collecting water from the leaking roof when she visited ‘Uheina and Mr. Mohuanga gave evidence that the leaks had caused rotting of the structure of the house.  I find that the renovations and the rebuilding of the shop would have been undertaken whether or not Lata believed she was entitled to stay on the land for life.    
[33]	The evidence as to the cost of the renovations was quite unsatisfactory.  It was not proven that the cost of the work was the almost TOP$30,000 as Mr. Mohuanga asserted in the tables attached to his written brief of evidence or even a lesser figure of $26,961 as Mrs. Tupou advanced in her submissions.  Mr. Mohuanga provided only estimates of the cost of the work that were not prepared for the purposes of this proceeding (and cannot for that reason be considered reliable) and were totally unsupported by any invoices, receipts, bank statements or records of hours worked.  Similarly, Lata produced no documentary evidence of any kind in relation to the renovation work or of any payment to Mr. Mohuanga in relation to it.
Unconscionability 
[34]	In her written submissions Mrs. Tupou provided a long list of matters which she said made Paula’s conduct unconscionable.  Most of the matters relied upon are irrelevant to the issue of whether an estoppel by acquiescence arises.  Unconscionability in this context must arise from reliance by the landholder upon his legal rights to defeat an expectation which by his words or conduct he has created that the claimant will have some interest in the land or be entitled to remain there.  It cannot be found in the fact that Paula did not tell Lata that he intended to surrender the land or allowed her to remain for a short period after the lease expired or show her proper regard as a sister.  Paula did not lead Lata to believe that she would have any interest in the land beyond the term of the lease or that she could remain on the land for life.  He did not encourage her to do work or expend money on the land and Siaosi’s house.  There is nothing unconscionable in Lata being asked to move from the land.
	The position of Siosifa
[35]	It must follow from my findings above that Lata’s defence of estoppel by acquiescence cannot succeed against Siosifa.  That notwithstanding the defence always faced insurmountable hurdles.  
[36]	To succeed against Siosifa Lata would need to establish that he acquired his interest in the allotment from Paula with knowledge of the circumstances that give rise to her entitlement to remain on the land and that it is unconscionable for him to assert his legal rights and evict her.  None of these requirements could be established in this case.
[37]	Siosifa has not acquired his allotment from Paula.  He was not Paula’s heir but a third son.  Upon Paula’s surrender of the land he was not able to claim it as of right and Paula could not bind the Minister to grant the surrendered land to him (Sakalia v Vailea & ors [1995] Tonga LR 130, 135 and Nuku v Luani (Unreported, Court of Appeal, AC 6 & & of 2017, 6 September 2017)).  Siosifa applied for the land once it had reverted to the estate holder and anyone else could have applied for the land. 
[38]	Siosifa did not attend ‘Uheina’s funeral and could not have heard any promises made by Paula at the funeral.  There was nothing to suggest that Siosifa knew that Lata held a belief that she could remain on the land for life.  There was nothing to alert him to the possibility of the existence of such a belief either.  
[39]	Siosifa was aware of some renovation work carried out by Lata but he did not encourage it and was not consulted about it and he was away from Tonga for some of the time during which that the work was undertaken.  
[40]	Given Siosifa’s lack of knowledge and having been granted the allotment following consultation by the Minister with Lata I can see no basis for a suggestion that it would be unconscionable for Siosifa to rely on his rights to require Lata to move off his land.  
[41]	The case of Nginingini was very different from the present.  In Nginingini the plaintiff had acquired her lease from the holder of the land and had actual knowledge of all of the matters giving rise to an equity in favour of the defendant entitling her to occupy the land.  In addition the lease was simply a device to defeat the defendant’s equity.  I also found that it would have been unconscionable in those circumstances for the plaintiff to assert her rights under the lease. 
	Result
[42]	Siosifa’s claim is successful.  There shall be an order granting Siosifa possession of his town allotment and requiring Lata to move off Siosifa’s land and remove all of her possessions from the land.  
[43]	Siosifa is entitled to his costs which are to be fixed by the Registrar if not agreed.
[44]	While this ruling takes effect immediately I would hope and expect that Siosifa would allow Lata some reasonable time to make arrangements to move from his land in a dignified manner. 

       									O.G. Paulsen
NUKU’ALOFA: 3 April 2018					PRESIDENT