IN THE LAND COURT OF TONGA
NUKU’ALOFA REGISTRY				  		       
 LA 17 of 2024

BETWEEN				
VE’ETUTU SATINI
-Plaintiff

AND					
LOFIA SATINI
-Defendant

JUDGMENT

BEFORE:		HON. JUSTICE TUPOU KC
Mrs Salote Fukofuka as HON. LAND ASSESSOR
Appearances: 	Mrs T. Cokanisiga for the Applicant 
Mr C. Edwards SC for the Respondent
Date:			6 February, 2026

The Dispute
1.	The parties in this dispute are brothers. The Plaintiff, Ve’etutu Satini (referred to hereafter as “Ve’etutu”) is the elder brother. He brings this action to remove the Defendant, Lofia Satini (referred to hereafter as “Lofia”) and his family from his registered town allotment situated on Hala Tu’i, Kolofo’ou, Tongatapu (referred to hereafter as the “Allotment”). 

2.	Lofia’s first objection was, he had no knowledge Ve’etutu was the holder of the Allotment. During the trial that position changed and he admitted the Plaintiff was indeed the registered holder of the Allotment.

3.	The second pleaded objection was that Ve’etutu had expressly requested he build the house on his Allotment because there was ”no house and nowhere else for them to hold their mother’s funeral.”

4.	The third objection was that he was assured by Ve’etutu that he and his family could remain on the land and no one would ever come to remove them from the land.

5.	The 4th objection was that the Defendant had never complained about the house or further extensions until he demanded they leave in 2024 which has led to this proceeding.  

The Facts
Background
6.	It is essential to provide a brief background of the material land in dispute. Historically, the Land was in the possession of the Kamoto family prior to 1927. However, no formal registration occurred until 1915 when it was registered in the name of Lu’isa Nau Kamoto (referred to hereafter as “Nau”), the original holders’ widow. The Land was known as “Navosa” although the witnesses referred to it as “Kotone”. I shall use Navosa in this Judgment. 

7.	Nau’s heir was one Sione Kamoto (referred to hereafter as “Sione”). Sione married Kilisitina with whom he begot an heir, Manase Kamoto (referred to hereafter as “Manase”). 

8.	Sione died in 1943 while Manase was still 5 years old. The widow, Nau (Sione’s mother) was still living at the time and therefore still held Kotone in her capacity as the previous landholder’s widow. 
9.	Meanwhile, after Sione’s death, Kilisitina re-married. Her second husband was Fe’ao Satini. They had four children. They were, Ve’etutu, Lofia and two daughters, Lavinia and Tu’ifua. Kilisitina, for a number of reasons remained on Navosa, even after she remarried. The court heard, she raised her children on Navosa.   

10.	After Nau died, the Minister of Lands at the time held the view that Navosa was in excess of the prescribed area under the Land Act of 1927. He decided the registration should be cancelled and sub-divided to comply with the Land Act. He sued Manase, the heir. The Land Court found that Navosa was not subject to the prescribed area under the Land Act because it was in the Kamoto family’s possession prior 1927. It held Manase was entitled to hold Kotone in its entirety.  

11.	Manase migrated to the United States of America and died there on 29 May, 1989. The Allotment was subsequently divided amongst Manase’s 3 sons. His heir, Sione Kamoto decided to split his allotment in two with one half to be registered by the Plaintiff. 

12.	That half share, consisted of 759.1m2 and has been registered by the Plaintiff under Deed of Grant Book 364 folio 9 on 21 March, 2000. This is the material Allotment in this dispute. 

14.	Kilisitina was allowed to remain on Navosa with her second husband and raised their children there. In 1981, Ve’etutu and his sister Tu’ifua migrated to the United States and have lived abroad since with the Plaintiff currently resident in Canada. 

15.	Kilisitina had her own house which was built by Manase. Lofia and Valu lived in what the witnesses referred to as a “faleafa” before Lofia was married. According to Lofia the faleafa was built with Manase’s consent.  

16.	Makilita, Lofia’s wife, told the court the faleafa was built with government aid after a cyclone hit Tonga. 

The Plaintiff’s application for the Allotment
17.	In June 1998 the Plaintiff returned to Tonga to lodge his application to register the Allotment. His application was supported in writing by both Sione and Kilisitina. Those letters were produced in evidence. 

18.	The said letters did not identify the specific boundaries of Ve’etutu’s Allotment. In Sione’s handwritten letter of 28 June, 1998 it indicated it was the area towards the back of his allotment and in his letter of 29 June, 1998, he specified the area as 30 perches to be registered by Ve’etutu. There was no sketch map to indicate where exactly the 30 perches lay in terms of Sione’s allotment.  

19.	The Plaintiff said he showed Lofia Sione’s letter in support of his application for the allotment. The Defendant confirmed this under cross examination during the following exchange:
		Mr Edwards:	When did you know it was his allotment?  
Defendant:	I knew when he submitted his application for the allotment

20.	There was no evidence to show that Ve’etutu or Lofia knew the exact boundaries of Ve’etutu’s Allotment except it was towards the back of Sione’s allotment. Lofia confirmed he “was aware that Ve’etutu was trying to get a piece of land from Sione Kamoto Jr but did not know at the time which piece of land exactly.” 	

21.	In the same year on 28 September Lofia registered his own town allotment at Halaleva. 

The request to build a house
22.	Lofia told the court his greatest responsibility was looking after Kilisitina. In 1997, Kilisitina needed full time assistance and Lofia gave up his job to look after her full time.  

23.	Lofia and Makilita raised their family in the faleafa. They had extended the original house and insured it. The faleafa was not situated on Ve’etutu’s Allotment. 

24.	In January, 2000 the faleafa caught fire and burnt down. Lofia and his family temporarily moved to a friend’s house at Tu’atakilangi while they waited for the insurance funds. 

25.	The court was told they received $18,000 from the house insurance which they intended to use to build a house at his town allotment at Halaleva.

26.	Kilisitina fell ill and was hospitalised shortly after. As Lavinia was working, she found a cousin Valu to stay and look after Kilisitina at the hospital. Valu had stayed with the family for years and had moved out due to problems with Makilita.

27.	Lofia denied Valu looked after Kilisitina at the hospital. I found Valu as a reliable witness and prefer his version. Further, Lofia could not specify who looked after Kilisitina at the hospital if it was not Valu.   

28.	Valu estimated he was with Kilisitina at the hospital for a week or two before she died.
 
29.	Valu told the court the construction of Lofia’s house on Ve’etutu’s Allotment commenced while Kilisitina was still in the hospital. It was done in a hurry because they were aware Kilisitina was dying. As there were a lot of men to help, the house was finished within 2 weeks. 

30.	Valu told the court when he returned from the hospital the foundation was complete and when Ve’etutu arrived in Tonga the house was almost finished.  

31.	Ve’etutu heard Kilisitina was ill and flew to Tonga from Canada. He arrived on Saturday, 4 March, 2000 and was met at the airport by Lofia. On their way home he asked Lofia how their mother was. Lofia informed him then, their mother had died. 

32.	They went to Navosa. When they arrived at Navosa, Ve’etutu immediately noticed a house erected in the middle of the area of his Allotment. Ve’etutu told the court he asked Lofia what the construction was, who gave him permission to build on his Allotment, where will my son build, why have you not built at Halaleva? 

33. 	Lofia walked off without responding to his questions. Ve’etutu was asked whether he did not think it important to press his concerns with Lofia. Ve’etutu said Lofia had left and that was it. 

34. 	Ve’etutu later accepted that the construction was still in progress when he arrived. He readily accepted he did not stop Lofia from completing the house Lofia had built on his Allotment.

35.	It was Ve’etutu’s position that Kilisitina’s house was adequate to hold her funeral. He produced photographs of Kilisitina inside the house with Lofia’s children. The room that is shown on the photograph is spacious. It was not clear whether the room shown was the bedroom or the living room. Either way it did not fit Lofia’s description that the bedroom fitted only a single bed and the lounge could only take a double sized mattress. 

36.	Ve’etutu said he stayed at Kilisitina’s house when he arrived in 2000 and moved to stay with Lofia at Tu’atakilangi when his wife and 2 daughters arrived in order to make room for family who had come for the funeral. Ve’etutu told the court they were at Tu’atakilangi for a day and moved back to Kilisitina’s house after the funeral. 

37.	The court heard that after Kilisitina’s funeral Ve’etutu told his two sisters to tell Lofia to remove his house from his Allotment to Lofia’s own allotment at Halaleva. His sisters cried and pleaded with him not to because they were still living on the land and to avoid creating disharmony amongst them. 

38.	In 2020, Ve’etutu came to Tonga when his sister Lavinia died. He told the court he was not happy to see Lofia’s house, but his sister Tu’ifua asked him not to do anything. She asked him to wait until they were both gone then he could ask them to leave. Ve’etutu explained that he was keeping his word to his sisters. The court heard that these discussions were between Ve’etutu and his sisters. Lofia was not present during those discussions. 

39.	Ve’etutu visited Tonga in 2024. The evidence with regard to where he stayed was unclear. I accept that he stayed with Lofia and his family as Kilisitina’s house had been dismantled by Lofia’s family. 

40.	While he staying with Lofia’s family, Frances (Lofia’s daughter) asked Ve’etutu to approve an extension she wanted to make to the house by signing a letter she had prepared.  

41.	Ve’etutu refused. Frances was upset and matters got out of hand. The court heard that Frances insulted Ve’etutu with profanities and kicked down a door. The incident led to Ve’etutu requiring Lofia to remove their house and leave his Allotment. Ve’etutu moved out and stayed with another family. 

42.	Ve’etutu told the court that while he lived and worked in Tonga and after he moved overseas, he helped his mother financially. As for her funeral, he paid for the mortuary, made contributions to the materials for the cemetery, the food expenses, and was present in person to help. He produced photographs that showed him at the cemetery when Kilisitina’s grave was being built.   

43.	A letter of demand was sent to Lofia on 3 July, 2024 to remove his house and vacate the Allotment by 14 July, 2024, failing which will result in Ve’etutu seeking damages in the sum of $1,000 per week for the duration of any period he remains on the Allotment thereafter. 

44.	 As for Lofia’s version of events, in his brief of evidence, he said:

“20.	When Ve’etutu saw that there was no house at Kotone except the two small houses that looked more like shelters, he asked me to build a house big enough for us to hold our mother’s funeral as it was very embarrassing that there was not a suitable place to hold our mother’s funeral. He also showed me exactly where to build the house which was on his allotment. 

21.	I asked Ve’etutu if he had money to build the house and he said no and asked me to build the house and we can live there after the funeral. Because of the love I had for my mother, I agreed to build the house and to fund it from the insurance money I received …… The insurance money we received was around $18,000 which we used for the house and to fund my mother’s funeral.”

22.		The only reason I agreed to build the house because we urgently needed a good house to hold our mother’s funeral and Ve’etutu promised we would live there and no one will ever come and disturb us.”

45.	In his statement of defence Lofia pleaded that the promise to live on the Allotment indefinitely was made after the funeral. During this trial he has shifted to claim the promise was made at the same time the request to build the house was made. The statement of defence was not amended to reflect the later allegation and Lofia is therefore not entitled to rely on that change of position.
46.	Except that Ve’etutu requested Lofia to build the house on a day Lofia was tidying up the burnt faleafa, the time when the request was made is vague. 

47.	Lofia said Ve’etutu was embarrassed to have Kilisitina’s funeral in her house. Lofia said the house was a “little shelter”. Her bedroom fitted only a single bed and the lounge would only take a double sized mattress.   

48.	Lofia in support of his assertion that he did not build the house until after Ve’etutu arrived in Tonga said that as the younger sibling he waited for Ve’etutu to come and decide what was to be done. 

49.	Then that changed to, he did not care when Ve’etutu came or if he was coming at all. He would have cared if Ve’etutu loved him and his mother. He was not interested whether Ve’etutu was coming or not. Ve’etutu was hopeless and did not help with anything. Responsibility for family obligations was borne by him and he agreed that everything was done in accordance with decisions made by him.

50.	Lofia was questioned about a building permit for the house, the following exchanged occurred:  

“Mr Edwards:	Was there a building permit? 
Lofia:		No 
Mr Edwards	Why not?
Lofia			It happened so quickly and I wanted it done
Mr Edwards	Do you understand what a permit is? 
Lofia	Yes, the tragedy was so overwhelming that I could not think straight
Mr Edwards	Did you know that you required a permit? 
Lofia 	Yes
Mr Edwards	Why did you not obtain it?
Lofia	I wanted to erect the building first and obtain the permit later
Mr Edwards	It is the owner who will apply for the permit?
Lofia	Yes, I know very well – but when tragedy hit my mind was not right – I did not know it was the person who owned the land would apply for the permit but because it happened all of a sudden I decided to go ahead with the construction.”

51.	Then the court heard from the builder, Siosaia Finau (referred to hereafter as “Saia”). Saia was adamant the house was built after Kilisitina died. He was authorised by Lofia to build the house. 

52.	The structure was 36 x 18 feet with a partition in the middle dividing it into 2 rooms. He said it took approximately two weeks to build the house. He could not recall when exactly he started but he was sure it was on a Monday. 

53.	Mr Edwards asked if he obtained a work permit. Saia declared he did not need one and it was lawful to erect the building without one. 

54.	Saia did not recall seeing Ve’etutu during the construction of the building. He told the court it was an in joke amongst the family that Ve’etutu came from Canada without any contribution to the house or show up to give a hand. Saia said Ve’etutu spent most of his time consuming alcohol and just showed up for the funeral. 

Makilita Satini
55.	The court then heard from Makilita Satini (referred to hereafter as “Makilita”). She is Lofia’s wife. She said that Lofia told her about Ve’etutu’s request to build the house for Kilisitina’s funeral. She did not warm to the idea but knew Lofia would do it because he cared deeply for his mother and because Ve’etutu said they could live on his Allotment indefinitely. 

56.	She told the court that after Kilisitina’s funeral, Ve’etutu continued to assure them they could stay in the house and care for the land so that family from abroad and from the outer islands have somewhere to stay on visiting Tonga. 

57.	Makilitia said that they extended the house 4 times and in June, 2024 before Ve’etutu came to visit, his wife had called her and assured her that Ve’etutu was coming to build two houses, one for their son and another for Lofia. 

58.	Makilita was concerned about this action because they have a daughter with special needs and they are too old and has no money to move their house.

59.	Under cross examination Makilita’s evidence on how she learnt about Ve’etutu’s request altered. She told the court that she was present when Ve’etutu asked Lofia to build the house. She said it was agreed by everyone including Ve’etutu that Kilisitina’s house was not suitable for her funeral. 

60.	In answering a question from the bench, Kilisitina said she did not hear Ve’etutu express that Kilisitina’s house was unsuitable for her funeral.  

61.	She was asked if she knew about the problem her daughter caused for Ve’etutu. She said she did not. But when asked if they had spoken to her about her bad behaviour, she said Lofia had reprimanded her about it. 	 

62.	Sione Soakai Satini, a cousin of the parties was also called. He told the court he was at the Allotment when Ve’etutu asked Lofia to build a house for the reason given by Lofia. Sione said he heard Lofia ask Ve’etutu if he had money to build the house and Ve’etutu said no. Ve’etutu then pointed out to Lofia where to build the house. 

63.	Under cross examination Sione Satini could not recall when Kilisitina died but confirmed that he flew to Tonga on the same day he was informed of her passing. 

64.	When pressed where exactly Ve’etutu requested Lofia to build the house, Sione Satini said it was at the Allotment, he was there when Ve’etutu arrived with another cousin, Loufusi. 
 
65.	Sione Satini initially told the court that he was in Tonga for 2 days. He left before the funeral. Under cross examination he extended his stay to two weeks. 

The Law 
66.	By virtue of his undisputed registration of the Allotment, Ve’etutu is entitled to immediate possession. Ve’etutu’s rights are obstructed by Lofia who has built a house on the Allotment.  

67.	On behalf of Lofia, Mrs Cokanisiga in her opening submissions stated that Ve’etutu is estopped by conduct under s 103 (3) of the Evidence Act and by acquiescence from removing Lofia from the Allotment. In her closing submissions Mrs Cokanisiga extended the defence to include s 103(2). 

68.	It is unsatisfactory that at the closing of the Plaintiff’s case, the Defendant seeks to extend the scope of their defence. This is agitated by the fact that the defences of the various estoppel relied on were not specifically pleaded with particulars to adequately inform the other side of what it is up against. At the opening of his case the court was informed that the Defendant also accepted that Ve’etutu was indeed the registered holder of the Allotment. 

69.	I accept that discussions were had with counsel before trial and that should have led to the pleadings being amended. That was not done. However, I believe the defences can be deduced from the pleadings and I allow the defences and Lofia’s acceptance of knowledge of Ve’etutu’s holding of the said Allotment on the basis that there is no serious prejudice to Ve’etutu’s case in doing so.  
 	 
70.	In support of her client’s defence, Mrs Cokanisiga relied on the approach taken in Siasi Tokaikolo
‘Ia Kalaisi v Maile & ors [2016] TOLC 8 where it was held that before s103 (2) could apply, the defence must prove at least all of the following:

(a) 	A representation by person A, in express terms or by
Conduct, to person B of the existence of a certain state of
Facts;
(b) 	An intention on the part of person A that the
Representation be acted upon by person B in a certain
Way;
(c) 	That it is acted upon by person B in that way;
(d) 	That person B acts in that way because of his belief of the
Existence of that state of facts; and
(e) 	Person B suffers damage as a result of acting upon his
belief.

71.	In the same case, it was held that before s 103 (3) could apply; the defence must prove at least all of the following:

(a) 	Some conduct by person A;
(b) 	The conduct is such that a reasonable person would take his conduct to mean a certain representation of fact and that it was a true representation;
(c) 	An intention on the part of person A that person B will act upon the representation in a certain way;
(d) 	That it is acted upon by person B in that way;
(e) 	That person B acts in that way because of his belief of the existence of that state of facts; and
(f) 	Person B suffers damage as a result of acting upon his belief.
72.	Alternatively, Kalaisi v Maile held that before an estoppel by acquiescence can apply, the defence must prove that: 

(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.

Considerations
73.	I thank counsel for their submissions which I have taken into account. 

74.	In an earlier ruling refusing security for costs in this matter, I stated that although Ve’etutu was the moving party in this action, he in substance was the defendant defending his rights to immediate possession and quiet enjoyment of his registered town allotment against the Defendant who built on the land and insists on a right of indefinite occupation.  

75.	As Ve’etutu’s registration is no longer disputed, the matter turns on whether the Defendant can prove his defences. 

Did Ve’etutu request Lofia to build a house on his Allotment expressly or by conduct? 
76.	To raise estoppel as a defence pursuant to s.103(2) of the Evidence Act, Lofia must prove all of the facts set out under paragraph 69 (a) to (e) above. 

77.	In general, I found Ve’etutu and his witness Valu reliable and credible. Their version of events in my opinion was more plausible as opposed to those presented by the Defence witnesses reasons for which will follow. 

78.	I find that when Kilisitina was hospitalised, Lofia struggled with the idea that she was dying as only in January he lost his house in a fire and was living temporarily at another’s house. 

79.	It was his belief that Kilisitina’s house was a little shelter and unfit to hold her funeral there. He was embarrassed about that and desired a bigger house for his mother’s funeral. That belief drove him to build the house in question. 

80.	Lofia knew, as he admitted, that Ve’etutu had been granted the back area of Sione Kamoto’s allotment. He knew that the faleafa was situated on the front part of Sione Kamoto’s and he could not build there. He decided to build on Ve’etutu’s Allotment. 

81.	Lofia struggled with the tragic loss of his house and then his mother’s failing health and imminent loss. Armed with $18,000 from his house insurance, he felt responsible for ensuring that a house was built for his mother’s funeral.  

82.	Lofia knew Ve’etutu had applied for the Allotment and he purposely built the house on it in the full knowledge that it was Ve’etutu’s Allotment. He did not wait for Ve’etutu or his consent. He did not care if Ve’etutu was coming and saw him as hopeless. Lofia decided what and how things were to be done and carried them out as he saw fit.  
 
83.	I find that Lofia’s decision described at paragraph 50 above as more likely what happened and not what is described at paragraph 48. 

84.	The building of the house without a building permit applied for or signed by Ve’etutu, strengthens his claim. 

85.	Further, at the time Lofia erected the house on Ve’etutu’s Allotment, his own registered allotment at Halaleva was available for him to use and hold Kilisitina’s funeral there. I heard no evidence as to why he did not take that course. Lofia would not be in this situation had he done that.

86.	I believe that Lofia then authorised Saia to erect the building on Ve’etutu’s Allotment. I accept Valu’s evidence that the building commenced while Kilisitina was still in hospital. By the time Kilisitina died on 3 March, 2000, the house was almost finished.

87.	When Ve’etutu arrived on 4 March, 2000, the house was already up, almost complete. When he confronted Lofia about it. Lofia walked away. 

88.	Ve’etutu did not stop the building. I find it was the correct thing to do under the circumstances. They had just lost their mother and she laid waiting for burial. It was not exactly the time to pull down houses or create family drama.  

89.	I believe Ve’etutu when he said, “The allegation by Lofia that after our mother died that I asked him to build a house so that it can be used for the funeral is false and very strange. It sounds strange because I have not heard of a case where a person has died, and the funeral have been deferred to enable a house to be built…During that time, the body of our mother if Lofia’s allegation is correct, would have had to be put in cold storage until the alleged building is completed...” 

90.	Clearly, Ve’etutu’s priority was to lay his mother to rest. He was not concerned about the size of Kilisitina’s house nor did he share Lofia’s embarrassment. But because the house Lofia built on his Allotment was there, he could not do much else.   

91.	I find Valu’s evidence that the construction was done in a rush and quickly because it was understood Kilisitina was dying, consistent with Lofia’s evidence mentioned at paragraph 37. 

92.	Others who said were present when Ve’etutu allegedly made the request were Sione Satini and Makilita. I did not find their evidence reliable for reasons discussed below.  

93.	Sione Satini could not decide whether he was in Tonga for 2 days or 2 weeks. He said that he flew to Tonga on the day he was informed of Kilisitina’s death and left 2 days after, before her funeral was held. He said he arrived in Tonga before Ve’etutu. If that were true, he had to have been informed on the 3rd as that is when Kilisitina died and fly to Tonga on the same day because Ve’etutu arrived on 4 March, 2000. Two days from the 3rd is the 5th, a Sunday. It’s impossible that he left the country then, as the Tonga airport does not operate on Sundays. 

94.	Sione Satini did not give evidence he heard Ve’etutu express he was embarrassed about the size of Kilisitina’s house or that it was unsuitable. He did say though that he heard Ve’etutu tell Lofia they could live on his Allotment indefinitely. Sione Satini clearly supports Lofia in this and echoed his position.  

95.	As for Makilita, her brief of evidence she stated that Lofia told her about Ve’etutu’s request to build the house and she did not agree. 

96.	When cross examined, she told the court that she was present when Ve’etutu asked Lofia to build the house. She said Ve’etutu asked Lofia outside of their home. When Mr Edwards asked, whose home? She said Ve’etutu’s home and then immediately as if to negate what she just admitted, she said “we do not question it is his – what we mean is that we have gone to great expense on the house.”

97.	They could not have possibly been outside their own house because it was burnt and if they were outside a house on Ve’etutu’s land, it was the one built by Lofia. Further, if the house was already there, there was no reason for Ve’etutu to ask Lofia to build one. 

98.	Like Sione Satini, Makilita did not hear Ve’etutu say he was embarrassed Kilisitina’s house was too small. She did not give evidence that she heard Ve’etutu promise Lofia they could live on the land indefinitely. 

99.	 Saia, the builder confirmed it was Lofia who authorised him to erect the building. I find it more probably that if Ve’etutu was in Tonga at the time and had requested Lofia to build on his Allotment, naturally, he would be the person giving authorisation to build. 

100.	As it is, the exact expression by Ve’etutu’s claimed to have been a request to build the house has not been proven. There was some allegation that Ve’etutu said to Lofia to build a proper house “ke na ngali poto”. This was denied by Ve’etutu.  

101.	Secondly, when that request was made has not been proven. Thirdly, the place where the request was made has not been proven.  

102.	Lofia said it was when Ve’etutu came while he was tidying up the burnt house, contrary to Makilita’s evidence that it was Ve’etutu’s Allotment. 

103.	Practically, if Lofia’s version was correct and he was waiting for Ve’etutu to arrive and to give directions on what needed to be done and Ve’etutu shared his view that Kilisitina’s house was embarrassing and inadequate, it is likely that everyone present would recall what was said. 

104.	It is also likely that there would be a family discussion as to who to engage to build the house, how big a house was needed, who was to pay for what, how long it would take to build as Kilisitina had died how to get a building permit and so on. There is no evidence that such a discussion occurred. 

105.	The more plausible scenario is that Lofia decided on his own to spend his insurance money on building a “better” house on Ve’etutu’s Allotment to hold Kilisitina’s funeral before Ve’etutu arrived in Tonga.
 
106.	Bearing in mind the guidance from Mafile’o v Muhupeatau (Unreported, Land Court LA 5 of 2009, 15 July 2011  where Scott LCJ) at [31], referred to (Legione v Hately [1983] HCA 11(1983) 152 CLR 406), and said 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.”
	
I find that against Ve’etutu’s denial, Lofia needed to prove that Ve’etutu made a representation to him expressly or by conduct to build a house on his Allotment precisely and unambiguously. 

107.	I find that Lofia has failed to do that and therefore cannot rely on s.103 (2) of the Evidence Act. It is consequently unnecessary to proceed and assess the remaining elements under this defence. 
 
Did Ve’etutu request Lofia to live indefinitely on his Allotment expressly or by conduct? 
108.	Firstly, Lofia told the court that Ve’etutu expressly promised him that he and his family could live on Ve’etutu’s Allotment indefinitely at the same time he requested him to build the house. Ve’etutu continued to re-assure Lofia of his promise after the funeral and as they continued to live on in the Allotment.  

109.	Secondly, Lofia asserts that Ve’etutu knew he occupied the Allotment and carried out extensions to the house. Ve’etutu’s silence and failure to take any steps against his occupation and work on the house is conduct that supports such a promise was made. 

110.	Ve’etutu denies he promised Lofia he could live on his Allotment indefinitely. He said that after Kilisitina’s funeral, he registered his Allotment and asked his sisters, to tell Lofia to remove his house and move to Halaleva. 

111.	His sisters pleaded with him not to do anything because they were living there and not to create disharmony amongst them. Ve’etutu yielded to their request and proceeded to register his Allotment before he returned to Canada.  

112.	In 2020 after Lavinia’s funeral. Tu’ifua asked Ve’etutu again, not to do anything and to wait until she was gone. Ve’etutu like before yielded to her request. 
113.	I must note that this part of Ve’etutu’s evidence would, under normal circumstances be considered hearsay evidence. Lavinia has died and this court has traditionally recognised that land cases constitute something of an exception to the hearsay rule.I apply this exception and admit this part of Ve’etutu’s evidence as credible and reliable. 

114.	Ve’etutu said that Lofia requested him to approve an extension to his house once which he refused. He was not aware of the rest of the extensions until he saw when he was in Tonga. 

115.	Ve’etutu also said that when Lofia and/or his family dismantled Kilisitina’s house in 2024, he realised then that Lofia did not want him to return to his registered Allotment. This is reinforced by Frances words to Valu that he should pick up Ve’etutu from the airport and find somewhere else to stay.

116.	While he was staying with Lofia in his house in 2024, Frances’ requested Ve’etutu to sign an approval form to extend the house again. When Ve’etutu refused, Frances took things into her own hands and demeaned Ve’etutu, (her customary father) by lowering his status with profanities and kicking the door of one of the rooms in the house down. Makilita acknowledged this when she told the court that Frances was reprimanded by Lofia for her behaviour.  

117.	Mrs Cokanisiga also posed the following questions for the courts consideration.
a) 	If the house was already built on Ve’etutu’s allotment by the time Ve’etutu arrived in Tonga, and was for the purpose of Lofia’s own occupation, why was Lofia and his family living at Tu’atakilangi at that time?
	
Based on the available evidence, they were at Tu’atakilangi because when Ve’etutu arrived, the house was still under construction.

b)	Why would Lofia build a house on land that was not his instead of his town allotment at Halaleva? It is just absurd and unheard of that a person just decides to build on land that does not belong to him without a hint of authorization from the holder?
	
People building on land that is not theirs have been tried in this court time and again and is not unheard of. Having listened and observed the Defendant during this trial, I am convinced that he is capable and did build the house on Ve’etutu’s Allotment without his consent. No evidence was presented to show he could not build his new house at Halaleva and hold Kilisitina’s funeral there, if he felt her house was unsuitable.  

c)	Why would Ve’etutu let Lofia enjoy uninterrupted occupation for over 24 years without ever raising his rejection to their occupation?

	As Ve’etutu said it was at the request of his sisters and to avoid disharmony.   

118.	In his statement of defence, Lofia alleged that Ve’etutu promised him he could live on his Allotment indefinitely after Kilisitina’s funeral. This is contradictory to his evidence that it was made at the same time he requested him to build the house. No amendment was made to change the pleadings and Lofia is therefore bound by his statement of defence.  He cannot now rely on his assertion that the promise was made at the same time he alleges he was requested to build. 

119.	As Lofia has not made out the first element of his defence under s.103 (2) of the Evidence Act as described under paragraph 70 (a) above, I find it unnecessary to examine the remaining elements.

120.	Similarly, as I have examined Ve’etutu’s material conduct as well as expressed representation above, I find the same facts and analysis has sufficiently dealt with the estoppel under s.103 (3) and will have resulted in the same conclusion. 

121.   As for the alternative defence of estoppel by acquiescence. Lofia argued that to make out a defence under this head, the Defendant must prove the elements set out under paragraph 73 (a) – (e) above.

122.	On behalf of Lofia it was argued that Ve’etutu created the expectation in Lofia when he failed to stop the construction of the house or have Lofia remove it after the funeral. He claims that his expectation was reinforced when Ve’etutu told Lofia he would build a house for his son and one for him. 

123.	Lofia is required to prove precisely and unambiguously that Veétutu by his inaction or silence created an expectation in Lofia that he could live on Ve’etutu’s Allotment indefinitely. 

124.	 In the case of Starbev GP Ltd v Interbrew Central European Holding BV(1), the parties in that case agreed that silence could amount only to acquiescence in the context of estoppel by acquiescence, where there was a “duty to speak”. 

125.	Starbev argued that such a duty had arisen, citing ING Bank v Ros Roca SA, where it was stated that a duty to speak could arise if a reasonable person would expect the other party, “acting honestly and responsibly”, if it had a claim, to take steps to make that claim known. 
 
126.	The foundational test for the doctrine of estoppel by acquiescence was set out in Willmott v Barber (1880) where Fry J outlined that to establish estoppel by acquiescence, the following elements must be proved: 

1) 	the claimant, B must have made a mistake as to their legal rights;
2) 	B must have expended money or acted on the faith of that mistake;
3)	the true owner, A must know of their own rights inconsistent with B’s claim
4)	A must know of B’s mistaken belief; and 
5)	A must have encouraged B’s actions either actively or by failing to assert their rights while aware of the expenditure. 

127.	I believe the test in Barber prove more relevant to the circumstances of this case than those set out in Kalaisi. 

Was Lofia mistaken as to his legal rights over the Allotment?
128.	The answer is no. Lofia knew that Saone had split his Allotment in two, giving Veétutu the back half to register as his own town allotment. 

Did Lofia expend money on the faith on the faith of a mistake?
129.	Yes, Lofia did expend money to build a house not on the faith of a mistaken belief as to his rights over the Allotment but in the full knowledge the Allotment was not his and that he did not have Veétutu’s permission to build on it. 

Did Veétutu know his rights to the Allotment to be inconsistent with B’s claim?
130.	Yes, Veétutu knew the Allotment was his and questioned Lofia about the house he built on it upon setting sight of the house on his arrival in Tonga on 4 March, 2000. 

Did Veétutu know of Lofia’s mistaken belief, that he had a right to live on his Allotment indefinitely?  
131.	No, Veétutu did not know of Lofia’s mistaken belief. Firstly, Veétutu made his objection to the building known to Lofia upon his arrival at Navosa upon seeing the house on his Allotment. Secondly, on 21 March, 2000 received his Deed of Grant on 21 March 2000. Thirdly he told his sisters after their mother’s funeral to inform Lofia to remove his house to Halaleva. Fourthly, he refused to approve a request from Lofia to extend the house and lastly, he refused a request from Frances to extend the house in 2024. 

132.	Veétutu’s said conduct is not consistent with any knowledge of Lofia’s belief that he had a right to occupy his Allotment indefinitely. 

Did Veétutu encourage Lofia’s extensions to the house either actively or by failing to assert his rights while aware of the expenditure?
133.	I refer to Veétutu’s refusal of Lofia’s request to extend the house as conduct that ought to have alerted Lofia that Veétutu was asserting his rights over his Allotment. 

134.	Bearing in mind that Lofia’s purpose for building the original house was for their mother’s funeral. Véétutu accepted he did not stop its construction after he questioned Lofia about it and allowed their mothers funeral to be held there. 

135.	Once that purpose was met, Lofia no longer had a right to remain on the Allotment. It was open for him to remove his house to Halaleva and invest in his extensions there. He did not. 

136.	He continued to extend the house from a 1 bedroom and a living room to a substantial house of 5 bedrooms with 2 bathrooms, a kitchen, living area, living area and a veranda, without Veétutu’s approval. 
137.	In my view, Lofia took those risks in the knowledge of Veétutu’s legal rights and his objections to the house and extensions. 

138.	Makilita said that Veétutús’wife said Veétutu was going to build a house for Lofia and one for his son on the Allotment. Frances said that Veétutu’s wife had encouraged her to carry on with her business etc. The encouragement did not come from Veétutu as the landholder and does not bind him. 

139.	Even if those words were true they do not amount to a promise to occupy Veétutu’s Allotment indefinitely. 

140.	I accordingly find that Ve’etutu did not create an expectation or belief in Lofia and/or his wife that they could remain on his Allotment during their lifetime.

141.	 I am of the view that any extension carried out by Lofia were for his and his family’s benefit in the knowledge that Veétutu did not approve and at the risk of being asked by Veétutu at any time to vacate his Allotment. Lofia did not act to his detriment in reliance upon any expectation created by Ve’etutu.  

Is it unconscionable for Veétutu to rely on his legal rights and request Lofia and his family to vacate his Allotment?  
142.	 Under the circumstances and for the reasons provided above, I do not believe it to be unconscionable for Ve’etutu to rely on his legal rights to request Lofia and his family to remove their belongings and vacate his Allotment.  

143.	Lofia provided an estimate of the costs of removing his house. No one was called to tender or verify the document. It provides a total sum of $125,050 which included the cost of the house. It makes no sense to hold Veétutu liable for the costs of a house he did not authorise to be built on his Allotment. 

144.	Lofia has failed to establish an estoppel arising out of s. 103 (2) and s103 (3) of the Evidence Act or alternatively by acquiescence that entitles Lofia and/or Makilita to stay on the Allotment indefinitely and estopping Veétutu from asserting his rights to his Allotment.  

145.	Veétutu also claimed mesne profits in the amount of $1,000 per week from 14 July 2024 to 21 July 2024 and $1,000 per week from 22 July, 2024 up until such time Lofia vacates his Allotment. 

146.	The court heard no evidence as to what damages were suffered by the Veétutu in consequence of Lofia’s unlawful occupation of his Allotment or as to any rent of the Allotment which would have been payable if it was leased to any person for residential purposes, given the house he occupied was his own. I also bear in mind that at times Veétutu lived in the house with Lofia and his family. 

147.	Accordingly, I find it appropriate to only award nominal damages which I fix at $100. 

RESULT 
148.	Ve’etutu’s claim is successful and he is entitled to immediate possession of his Allotment. 

149.	Lofia and his family are to vacate Ve’etutu’s Allotment immediately. 

150.	The house can be removed by Lofia or alternatively he may be compensated for on an agreed value (by mutual agreement) by Veétutu. 
 
151.	Lofia shall pay damages to Veétutu for unlawful occupation in the sum of $100.

152.	Although this judgment takes effect immediately, I would hope that as brothers, Veétutu will allow Lofia time to make appropriate arrangements and to move from his Allotment in a dignified manner. 

153.	I acknowledge the valuable assistance offered by the Hon. Land Assessor. 

			  P. Tupou KC
NUKUÁLOFA: 6 February, 2026						    J U D G E