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Tunitau v Telefoni [2024] TOLC 8; LA 18 of 2019 (18 December 2024)

IN THE LAND COURT OF TONGA
NUKU’ALOFA REGISTRY

LA 18 of 2019

BETWEEN
MOEAKI ‘USAIA TUNITAU
Plaintiff

AND
‘ESETA TELEFONI
Defendant

JUDGMENT

Before: Hon. Justice P Tupou KC
Hon. Land Assessor Faiva Tu’ifua

Counsel: Mr. C. Edwards Sr. for the Plaintiff
Miss A. Kafoa for the Defendant

I respectfully acknowledge the invaluable contribution of the Hon. Land Assessor, Faiva Tu’ifua in this proceeding.

Background

1. The Plaintiff is the registered holder of a tax allotment situated at Ma’ufanga known as “Makamaka” consisting of an area of 7 acres 2.5 perches best described under Deed of Grant on Book 184 folio 51^[1]. He brings this action to recover part of his land described as plot 5 for the purposes of this matter.
2. It is accepted that between December 1978 and March 1979, the Plaintiff agreed to allow the Defendant to live on part of his tax allotment consisting with an area of 30 perches. As mentioned, the plot is identified as plot 5^[2]. The Defendant built a house and had occupied plot 5 up until 1995 when she migrated to Australia and subsequently became a naturalized Australian.
3. The Plaintiff’s claim is challenged by the Defendant relying on a claim that he is estopped from evicting her because he promised to give her the land as her town allotment and had not taken any steps to stop her from expending monies to develop plot 5.

The Facts

4. The Plaintiff gave evidence and called his wife Lavinia Tunitau and Keleni Limoni Tapu as witnesses. The Defendant gave evidence in her defence.
5. The Plaintiff is a permanent resident of Australia and resides in Canberra. He travels back to Tonga every December. In December 1978, he was in Tonga and married his first wife on 10^th March, 1979. As mentioned he owns the tax allotment on which plot 5 is situated. He is now married to Lavinia Tunitau.
6. There is consensus that the request for land was made between December, 1978 and March 1979.
7. At the time, the Defendant was a teacher. She had just married Latu Sateki Telefoni in 1977. She is from the outer islands and was looking for land in Tongatapu to live on. They have 2 daughters and a son. ‘Ana, the eldest daughter was born in September, 1978. She and the Defendant’s son Haniteli both live in Australia now. Haniteli, like the Defendant, is a naturalized Australian. The youngest daughter remained on plot 5 with her own family and other relatives to date.
8. On the day the request for land was made, the Defendant was accompanied by one Kelepi Valu (“Kelepi”) to the plaintiff’s home. Kelepi is the Plaintiff’s paternal cousin and the Defendant’s maternal uncle. He acted as the Defendant’s spokesperson in making the request for the land. According to the Defendant, Kelepi’s words were:

“This is my niece, she is from the outer islands, I’m asking for a plot of land for her and her family to live on.” ^[3]

9. It was her evidence that her intention^[4] was to have the land to live on and to own as her family’s town allotment.
10. In contest, the Plaintiff says^[5] the purpose for the request was temporary as it was for her children to attend school, until the Defendant found “something permanent”^[6]. He was cross examined on the point as below:

Miss Kafoa: I put to you Moeaki that ‘Eseta came to ask for land to live on and to become their allotment.

Moeaki: My nephew asked for land for them to live on, that was it. I agreed to it in the knowledge they would live there only on a temporary basis.

Miss Kafoa: Did you know that at the time none of her children had been born?

Moeaki: I don’t know if any children had been born but that was the explanation given.

11. For the record and by the Defendant’s own evidence, her eldest daughter ‘Ana was born in September, 1978. If the request was made between December, 1978 and March, 1979, ‘Ana was 3 months old at the time.
12. There was no dispute that the tax allotment, including plot 5 was swampy land or that the Defendant had to fill it in order to build. The Plaintiff accepted that the Defendant took out a loan to build a house with his support. In that instant he had written a letter stating:

“I respectfully consent for Lavinia Na’a Telefoni to build her house on my tax allotment known as “Hiku’one” situated in Ma’ofanga......”

13. The name of the Plaintiff’s tax allotment as mentioned is “Makamaka”, I accept the insertion of “Hiku’one” to be an honest mistake. It is not disputed that the Defendant’s house is situated on “Makamaka”. That loan was for $5,000 and was used to build a 2 bedroom house with a living room and a separate bathroom and toilet.
14. Later, around October, 1985, the Defendant’s husband took out another loan. This time, no support from the Plaintiff was obtained. Instead, the Defendant obtained relied on an affidavit ^[7] from ‘Aisea Vaka’uta (“Aisea”) who claim to have been the Plaintiff’s land agent while he was abroad.
15. The Plaintiff denies ‘Aisea was his agent or that he ever had an agent for his land. ‘Aisea was not called and is said to be deceased. With the proceeds from the second loan, the Defendant’s existing house - a 5 bedroom house, with a kitchen, a dining area, bathroom and toilet was built.
16. In 1995 the Defendant and her family with the exception of their youngest daughter, moved to Australia for her husband’s further education and have lived there since. The Defendant became a naturalized Australian in 2006.
17. In 2019, when the Plaintiff discovered the Defendant had migrated to Australia, he instructed legal counsel to serve a notice for the Defendant to vacate the land. Lavinia accompanied by the Plaintiff and one Keleni Limoni Tapu, personally served the notice on the Defendant.
18. When Lavinia explained she was required to leave the land, the Defendant said;

“I hate this land and I do not wish to live on this cursed land and by the way, that is why I stay at Havelu when I am in Tonga.”

or words to that effect.

19. Lavinia enquired as to why she thought the land was cursed. The Defendant explained it was the criminal activities committed by her tenants on the land. Lavinia and Keleni both heard her say those words.
20. Although she denied saying those words in her written brief of evidence^[8], she did not deny it during her evidence in chief and further explained to her counsel what she meant. She explained that it was cursed because a young lady by the name of Meili Filimoehala stayed there. While she was there, a lot of boys and random people would come to her home looking for the young lady. She did not mean that the land itself was cursed but it was so because of the Miss Filimoehala’s presence.
21. After the Plaintiff closed his case I asked Miss Kafoa what her client’s case was. She explained that the Defendant relied on the following principles of estoppel:
    1. that the Plaintiff had gifted the Defendant this land to live on and to have as her town allotment;

b) relying on that gift she filled the swampy plot;

c) she and her husband both applied for a loan to build a house;

4. her family have lived on the land since and did not think to look for land elsewhere; and

e) their children have lived on it until now.

Analysis

22. Having observed the witnesses in court, I found the Plaintiff and her witnesses to be witnesses of truth. Where their evidence was inconsistent with the Defendant’s evidence, I prefer their evidence over the Defendant’s.

Did the Plaintiff gift the Defendant this land to have as her town allotment?

23. On the evidence before me, I am satisfied that there is no sufficient primary evidence to establish or from which an inference could be safely drawn that the Plaintiff gifted the Defendant plot 5 to have as her town allotment. The request as recited by the Defendant was for land to live on and I find that permission was granted by the Plaintiff on that basis. The Defendant has not demonstrated words or conduct by the Plaintiff that would amount or create circumstances where a safe inference could be drawn that the Plaintiff intended for her to live on plot 5 permanently or to have as her family’s town allotment.
24. That may well have been her intention, but it was an incorrect assumption on her part as it was not expressed as such to the Defendant or in return. The court heard from the Defendant. His intention was the opposite. This court has previously upheld the view that representations which are relied on to claim the creation of an estoppel should be precisely defined as a party must not be estopped on an ambiguity.^[9]
25. Secondly, the Plaintiff’s position is further enforced by the letter he signed in support of the Defendant’s initial loan in 1979. The letter was written by the Defendant with no input from the Plaintiff except for his signature. The letter stated that the Defendant was given permission to build her house on the Plaintiff’s tax allotment. That was immediately or soon after the Plaintiff gave his permission for her to live on plot 5 when the parties’ conversation would have been fresh in their minds. I accept that the letter is an accurate reflection of the parties’ position as to the land and to their understanding.
26. Thirdly, for her husband’s loan, the Plaintiff obtained an affidavit from ‘Aisea who claim to have been the Plaintiff’s land agent was obtained to support the loan, not the Plaintiff. The Plaintiff denied ‘Aisea was his agent or that he ever had an agent. ‘Aisea claimed to have been present when the request for land was made to the Plaintiff. However, upon review of the evidence on those who attended the meeting, the Plaintiff identified the Defendant, Kelepi and one Sailosi Hemaloto^[10]. ‘Aisea was not identified as an attendee at the meeting. ‘Aisea is deceased and his affidavit could not be tested. Accordingly, I disregard his affidavit.
27. Fourthly, when the Defendant was served with the notice to vacate plot 5, she did not immediately declare that the land was gifted to her permanently and as her family’s town allotment or remind the Plaintiff of his gift. Instead she said that she “did not want to live on the land as it was cursed”. She had the opportunity then to challenge the Plaintiff directly about the promise she is alleging he made her, but did not.
28. For all of the above reasons, I am satisfied on the evidence that the Plaintiff did not gift, promise or make any representation to the Defendant in regards to plot 5 that would amount to creating an estoppel having the effect of denying him from evicting the Defendant and/or anyone authorized by her from his land.
29. I find that the Plaintiff, when approached by his cousin Kelepi, out of his good heart gave the Defendant permission to live on plot 5 for the schooling of her children. That was the scope of the permission granted to the Defendant and her family and the Plaintiff was entitled to rescind that permission when the scope of licence expired, that is, her children having completed school and give her notice to vacate within a reasonable time.

Expending on improvement of plot 5

30. It was accepted that the Plaintiff’s tax allotment was swampy land. It should have been known to the Defendant that the land was swampy and bare before she requested permission to live on the land. The filling in of the land and building a house for her family to live in was necessary for her to utilise the licence given her over the land.
31. Under the present circumstances, the Plaintiff would have been required to surrender plot 5 under section 54 of the Land Act. There was evidence from the Plaintiff that she did ask for the land to be surrendered but no evidence was produced to substantiate her claim. She stated that officers from the Ministry of Lands and Survey attended the property. They told her that the Plaintiff must return and subdivide the land to provide for an access road before people can live on the land. She said that contacting the Plaintiff was difficult and she was unable to contact him.
32. Clearly, a surrender must be from the holder of the land. The Defendant claim her lawyer was in possession of the document. It was not produced, nor put to the Plaintiff that he had surrendered plot 5. I am not convinced that any such surrender exists.
33. There was evidence about an amount of money given to the Plaintiff and a payment made for a debt he owed. The Plaintiff’s first wife was not called and I reject her evidence about the debt. In any event, sufficient to state that the amount was in dispute. But that is not important.
34. The significance of any money involved in my view, is the purpose for which it was paid. I accept the Plaintiff’s position that it was a token of cultural acknowledgement of her fononga that is, her request for land. I accept that given she has no connection to the Plaintiff and therefore the land, by blood or otherwise. To construe it for any other purpose such as consideration or payment for the land would fall under section 13 and illegal.
35. No evidence was produced as to the amount of the husband’s loan or the value of the existing houses on plot 5. Nevertheless, that house was built without the Plaintiff’s support and therefore at the Defendant’s own risk.

Occupation of the land for 45 years

36. The Plaintiff and her family have occupied plot 5 for at least 45 years. As a result, the length of their occupation may have encouraged her to challenge the Plaintiff in this matter. But an allotment must be acquired only by the relevant provisions of the Land Act.
37. Here, the occupation was possible with the Plaintiff’s permission, that permission has been rescinded and the Defendant’s occupation is now unlawful and against the Plaintiff’s rights.
38. In saying that, I bear in mind the words of Isaac J in Moffat v Sheppard^[11] on revocable licences, where he said:

“The respondents cannot advance their case beyond that of a merely revocable licence unless they can establish a grant of the interest in the land or an agreement for valuable consideration specifically enforceable, or conduct raising an equity in their favour. Putting it briefly, they must show grant, contract or estoppel.”

39. For all of the above reasons, I conclude that the Defendant has not been able to show estoppel.

Result

40. Judgment in favour of the Plaintiff.
41. It is ordered that the Defendant, their family and any other person residing thereon by their permission are to vacate plot 5 situated on the Plaintiff’s tax allotment known as “Makamaka” by 15 January, 2025.
42. All houses and personal belongings on plot 5 are to be dismantled and removed by 15 January, 2025.

43. The Defendant is to pay the Plaintiff’s costs of the proceedings, to be taxed in default of agreement.

P. Tupou KC
J U D G E

Nuku’alofa: 18 December 2024

^[1] Refer court book (CB), pgs. 58-59
^[2] Refer to sketch map at CB, pg.60
^[3] Refer CB, pg.50 para.7
^[4] Ibid at pg.49-50 para.5
^[5] Ibid at pg.3 – para.7 of statement of claim
^[6] Refer CB, pg.47 para.7 of his brief of evidence in reply
^[7] ibid, at pg.56
^[8] Ibid pg.53 para. 27 of boe
^[9] Legione v Hately [1983]HCA 11;[1983] HCA 11; (1983) 152 CLR 406 endorsed in Mafile’o v Muhupeatau [2011]TOLC 4
^[10] Refer CB - Pg.38 para 6 of boe
^[11] [1909] HCA 22; (1909) 9 CLR 265 at 286