IN THE SUPREME COURT OF TONGA
LAND COURT JURISDICTION
NUKU'ALOFA REGISTRY

NO.L72/96

BETWEEN:

1. SEMI L. VETE
2. TEVITA FETULI
Plaintiff

AND:

1. SIAOSI TAFOLO
2. FASI'APULE TAFOLO
Defendants.

AND:

3. MINISTER OF LANDS
Third Defendant

BEFORE THE HON. CHIEF JUSTICE WARD AND ASSESSOR TU'A VI

Counsel: P. Muller for the plaintiff
S. Tu'utafaiva for first and second defendants
V. Malolo for Third defendant

Date of Hearing: 11, 12, 13 November 1999.
Date of Judgment: 27 December 2001

JUDGMENT

This is a claim for possession of part of an allotment by the corner of Taufa'ahau Road and the 'Alaivahamama'o By-pass Road. The plaintiffs' claim is that the second plaintiff is the registered holder of the allotment, that he agreed to lease it to the first plaintiff for a period of 50 years and that a valid lease was established. They seek possession from the occupiers, the first and second defendants.

The first and second defendants are father and son and, between them, have been living on the land in question for many years. The first defendant, now a man in his late eighties, first lived on the land when it was held by Tevita Fetuli, the father of the second plaintiff who was, at that time, married to the first defendant's aunt. His case is that he looked after both of them and, after his aunt died, continued to do so even after the older man remarried. The second wife, 'Elenoa, is the mother of the second plaintiff and, when the older Fetuli died, she took the land as his widow. She died whilst the second plaintiff was still a minor.

The plaintiff's case is simply that, when the second plaintiff was of legal age, the land was registered in his name. In June 1994 he agreed to the first plaintiff taking a lease of the land for a period of fifty years and, having followed the correct procedures, a valid lease was drawn up. The defendants have been asked to vacate but are still living on the land and the plaintiffs seek their ejectment.

The defence of the first and second defendants is that the second plaintiff's father surrendered this land in 1963 and, as a result, the second plaintiff could not be registered as the landholder. Further that the second plaintiff's father promised the first defendant that he and his family should live on the land in recognition of the love and care the first defendant had shown to him and his wife - a promise repeated by the second wife after his death and, initially it is claimed, by the second plaintiff also. They seek dismissal of the claim for ejectment.

Further, by a counterclaim, they seek an order that the lease between the second and first plaintiffs is unlawful and should be cancelled and that they should be estopped from taking possession of the land. The basis of the counterclaim is that the father of the second plaintiff promised to register the land in the name of the first defendant and, on the clear and unconditional expectation that the land would be so registered, the latter built a substantial house on the property. He has lived on the land for more than forty years. When it was not registered by the older Fetuli, he asked first 'Elenoa and then the second plaintiff to register the land in the name of the second defendant but it was never done. They claim the grant of the lease to the first plaintiff was based on a number of mistakes by the third defendant, namely that the alleged surrender of the land in 1963 meant the second plaintiff could not put the land forward for lease, that the promise of the father of the second plaintiff was still binding and so the land was not available for lease and because the second plaintiff knew, before taking out the lease, that the defendants were occupying the land and had been for many years and misled the Minister by failing to disclose the fact the land was occupied. It is also claimed the first plaintiff was equally aware of that fact.

The third defendant's position is that there was never a surrender in 1963, there has never been any deed of grant to the defendants, the second plaintiff lawfully succeeded to the land in question and, following proper procedures, a valid lease was granted to the first defendant.

It is not necessary to go through the evidence of the parties in detail. I remind myself at the outset that the plaintiffs have to prove on a balance of probabilities the title of the second plaintiff to the land and the lease of it to the first. If those are proved, the burden lies on the first and second defendants to prove the issues raised in the counterclaim, namely the surrender in 1963, the promise by the father of the second plaintiff and its effect on the right to evict them and the consequent invalidity of the lease to the first plaintiff.

First, however, I deal with an issue that was raised by counsel for the first and second defendants in his final submission but which had not been pleaded. He suggested that the evidence did not clearly identify the land to which the second plaintiff claimed title and therefore the title of the land in question has not been proved. Such an issue should have been pleaded. It is true that the plaintiff's claim to title in the statement of claim was denied in the defence but only on the basis that the land had been surrendered by the second plaintiff's father in 1963. In order to be able to prove title, the plaintiffs have to prove which land is being considered. I am satisfied that the plaintiffs have proved that the land to which these proceedings relate is the land upon which the first and second defendants are living and that the title to that land is part of the allotment registered in the name of the second plaintiff. The Registrar of Lands, Samisoni Pone, gave evidence that the unallocated portion of the original 'api was registered in the name of the second plaintiff and the evidence before the court was that it had been accepted for many years that this particular land was registered in his name. I am not willing, in light of the pleaded defence and counterclaim, to allow such a point to be put forward without the other side having been put on warning by proper pleadings.

There is no dispute that the first defendant lived on the land during the lifetimes of the father of the second plaintiff and both his wives, including the time 'Elenoa held a widow's interest, and since her death.

I am also satisfied, on the evidence from the Ministry of Lands file, that the older Fetuli did apply to the Minister in 1963 to subdivide part of his town allotment into 9 plots. The Minister directed his surveyor to draw up a plan of the subdivision and that was done. Two plans have been produced to the court. One, produced by the defence, shows the allotment in this case marked with the name Siaosi Tafolo but the other plan, which is on the Ministry file, shows no name on this plot. The Registrar of Lands, gave evidence that there was an application by the first defendant to register that plot on 1 October 1963 but nothing more was done and it was never registered. That is why his name was not included on the Ministry plan.

I am satisfied that the intention of the second plaintiff's father in 1963 was to allow that land to go to the first defendant. It was suggested that the reason it was not registered was the fault of the Minister but, during the first defendant's evidence, he told the court that he had a town allotment elsewhere. That means, of course, that he could not have registered this one.

The plot has never been transferred. Whilst I accept that the older Fetuli had originally intended to transfer the land to the first defendant in 1963, I am not satisfied that he continued to wish the first defendant to stay on the land as the defence claims.

In 1966 he brought an action, concluded in 1969 before Roberts J, seeking to have the first defendant ejected from the plot in question. That case is now reported in 3 Tonga LR 12. The very fact such an action was brought suggests that the relationship between the two was not as good as it had been and any gratitude that may have existed in 1963 had clearly evaporated by 1966. On the other hand, there is no dispute that the first defendant or his son did remain on the land and still do. The first defendant's case here is that he was permitted to do so because of the promise of the holder yet he also told the court that, as early as the 1970s, he went to see the King because the court had given him two years to quit the land. He said the King pointed out he could not overrule the law and the first defendant should seek a lease permit. I am satisfied that he no longer had the consent of the holder to stay on the land and any earlier intention of the older Fetuli to allow him to stay out of gratitude or any other cause had gone and the first defendant knew it. I shall return to the effect of that decision later.

It has also been suggested by the defence that the subdivision of this land in 1963 was in fact a surrender to the government. Apart from their assertion, there is no evidence of that. The request to subdivide the land may have amounted to an intention to surrender under section 51(2) but such land would then have been available for distribution to and registration by other people. That appears to have occurred in some of the subdivisions but I do not accept the evidence proves on balance of probabilities that this portion of the land was surrendered. The 1966 court action shows that the older Fetuli still considered it his land and wanted the first defendant off it. Whatever the original intention of the older Fetuli in 1963 when he requested the subdivision, it was not treated as a surrender of this plot by the Lands registry and it remained as the original holder's land as is evidenced by the lack of any other name on the plan produced by the Registrar of Lands and as was stated, obiter, by Roberts J in the case in 1969.

The first defendant also told the court that he had asked Elenoa to register the land in his name and that he gave money to her to do so but she did not. He could not say exactly when this was further than that it was in the 1970s or 80s. As has already been stated, he already had a town 'api and so the registration could not have been in his name. If, as he asserts, he paid her money, it must have been for some other reason. He also stated in court that he was holding the land as trustee for his son. At first this was for an older son but subsequently it was for the present second defendant who was only about 6 or 7 years old at the time. I can attach little weight to that suggestion. There is no suggestion by the defence that the second defendant has legal title to the land. At the most he had a licence to live there. In such a case, his son has no right to inherit the land as an heir and so the father could not have been registered as a trustee as has already been determined by Roberts J in relation to an older son. The first defendant told the court that he had also paid the second plaintiff to register him as a trustee for the son and it was not done. It could not have been done and so, as with the suggestion that he had paid money to 'Elenoa, if the money was paid, it must have been for some other purpose.

At the hearing, I am satisfied that both the second plaintiff and the first defendant allowed malice for the other to cloud their evidence at times. Neither can be considered to have been totally truthful in his evidence although much of the difficulty in establishing the truth arises, I accept, as much from the passage of time and each man's belief in his general right to the land as it does from a deliberate intention to mislead the court. I do not need, as I have already stated, to go through all the evidence but one finding of fact needs to be referred to specifically.

The defence produced two documents, both from November 1988. The first, on 16th, states:

"I Tevita Fetuli, respectfully declare in this letter that I consent again for Fasi'apule Tafolo continue his occupation of my land in that part that he leased, until the time consideration is given to legalisation of occupancy."

It is stated to have been written by the first defendant on the authority of the second plaintiff "so that his borrowing of money could be approved". The first defendant told the court that the second plaintiff often asked him for money and I accept that was the case.

The second document, dated 22nd, is again written by the first defendant on the authority of the second plaintiff and states:

"I Tevita Fetuli respectfully declare in this letter that I satisfactorily agree for Fasi'apule Tafolo to continue residing on the piece of land that he leased and await the time when occupancy is lawful.

I authorise his house to remain out on the location where it was in 1956, October and also the water tank and shop. I have already agreed and allow permission for his occupancy to be forever and that is my consent with due respect and honesty."

Both documents are signed by the second plaintiff and the first and second defendants. In his evidence the second plaintiff denied he had signed them. I do not believe him and I am satisfied that the signatures which appear to be his were signed by him. The first defendant said that these were both given as a result of money he had given to the second plaintiff and the promises were given in order to obtain these loans.

As I have stated, I have reservations about aspects of the evidence of both the principal witnesses. It might have been hoped that the evidence of the Registrar of Lands would shed light on much of this but the file to which he referred appeared to be incomplete.

However, I do consider that his evidence provides critical information which assists me in my conclusions.

First it is clear that the subdivision was carried out in 1964 and some of the people who took plots registered their land. Clearly those plots were surrendered. The first defendant did not register his. When 'Elenoa died the second plaintiff was a minor and the land was held for him by trustees.

The Registrar of Lands told the court that in 1981 there was savingram from the Minister at the time requiring a survey for a lease permit for Kalolaine. It appears she was the first defendant's daughter. The first defendant told the court a lease permit was granted by Elenoa but, in 1986, the file shows there was a survey request for "renewal" of a lease for Fasi'apule Tafolo.

I find those dates significant. The evidence was that there was a two-year lease granted to the second defendant, which ran from 15 March 1986 to 14 March 1988. The first defendant's case is that this arose because the second plaintiff was always demanding money from him. He gave it on the understanding that the land would be registered in the name of the second defendant but the second plaintiff, instead, gave him a two-year lease, which he had to take because he could not force the registration. Elsewhere in his evidence, he said the second plaintiff had made it clear from an early date that he did not intend to register the land in the name of the second defendant.

I have already pointed out that the first defendant could never have been registered. The second defendant told the court he was born in 1967 so, by the time of the lease in 1986, he would have been old enough to have been registered as a landholder. Had there been a genuine intention to transfer the title to the second defendant at that time, there would have been no need to "force" the registration. I am satisfied on balance of probabilities that the intention of the second plaintiff at that time was only to grant a lease. I believe the events described show that money was paid to the second plaintiff and, previously, to his father and his widow, 'Elenoa, by the first defendant but that the intention of the both the second plaintiff and his father at least after 1966 was to give no permanent title to the defendants. At the most they were thinking of a lease. The reference in the document of 16 November 1988 to "legalisation of occupancy" could equally refer to a transfer of title or to a lease.

The second document of 22 also refers to an intention to "await the time when occupancy is lawful" both documents describe the land as the part of the land "that he [i.e. the second defendant] leased". I am satisfied on the evidence that the intention of both documents was to recognise a right to lease the land only. For much of the preceding period, a transfer of title would have been impossible and, whilst no formal lease was entered into by the parties, I am satisfied that it was seen by all of them as an informal lease arrangement.

The difficulty for the second plaintiff in the documents is the statement in the second document; "I have already agreed and allow permission for his occupancy to be forever and that is my consent…" However, the first defendant told the court of another claim brought in the Land Court by the second plaintiff in 1989, against the same defendants as in the present case, for possession of this land. Some of the documents from that action have been produced to this court. It was set for trial on 25 February 1991 but there were clearly efforts made by counsel for the parties to settle and, on 20 February 1991, Webster J ordered a directions hearing on 22nd to determine whether the trial was to proceed. It clearly did not. On 2 May 1991 he ordered that "as the defendants are making arrangements for payments due, further directions will be given on 9 May". On that date he fixed a further hearing in chambers "as the payment agreed has now been made and a lease application signed". The court has been shown an application dated 8 May 1991 for a lease for five years at an annual rent of $100.00 signed by the present first defendant as applicant and by the present second plaintiff as grantor.

At that subsequent hearing (and just before he left Tonga) Webster J ordered "as survey of the land has been completed and the application is ready to be submitted to Cabinet for approval" the case was to be listed to fix a date after the arrival of another judge "so that registration of the lease can be completed".

The next judge was Dalgety J and his order of 14 February 1992 states

"Upon hearing counsel for the Parties (Hola, Niu and Mrs Tafea) who represented that between them parties have agreed upon a renewal of the lease in question, suitably backdated, and that said renewal is now before His Majesty's Cabinet for approval; and accordingly that all contentious issues between the parties have now been resolved extra-judicially; therefore of consent;

It is ordered and adjudged that the action be dismissed…"

The first defendant told the court that the settlement was the result of an agreement between counsel. That was presumably before or at the hearing in chambers on 9 May 1991. He said in evidence that the agreed sum was $8,000.00 and he paid it in the belief that he was paying for an 80 year lease and this was the rent for the whole period although he had earlier stated that the sum was to settle the case. When later the lawyer produced the application it was only for a lease for five years. He says he protested but felt he had to accept. I do not accept his evidence of this. He had been represented by counsel. Had such an apparent trick been played by the lawyer for the other party, he could have asked his lawyer for advice. If the agreement had been as he suggested, that lawyer would clearly have assisted him. There were two further chambers hearings at which this might have been raised. The defendant asserts this issue but he calls no evidence from his lawyer or any other person to support this claim. The lawyer he refers to as representing the other side has since died but there were others involved who could have been called, including his own. I consider it curious that, if he believed he was to obtain a lease for 80 years, he took it out in his own name. The previous two year lease had been in his son's name and the documents of November 1988 both sought to secure the position of the son. The first defendant explained, however, that he did so on the advice of his lawyer.

I am satisfied on the evidence as a whole that there was an agreement for the first defendant to lease this property for five years and he so understood when he signed the application. It is also clear on the evidence that such a lease was never properly registered. What is not clear is the meaning of the statement in the order of Dalgety J that it was to be "suitably backdated". However, the evidence was that the previous lease had expired in 1988. Although the lease application was dated 8 May 1991, I am satisfied that Dalgety J must have been referring to backdating it to the expiry of the previous two-year lease. In such a way the continued occupation of the land in the interim would have been accounted for.

I find that the first defendant' right to stay on the property ran only for five years from 15 March 1988 and would therefore have expired on 14 March 1993. The lease with the first plaintiff was entered on 21 June 1994.

The defendants also claim that the land was not available for lease as they were in occupation and so the grantor should not have signed that there was no impediment to prejudice the lease when he signed the lease application. It is correct that both the first and second plaintiffs knew the defendants were in occupation at the time of the lease. However, the first plaintiff told the court that he was assured by the second plaintiff and accepted that he had the title to the land and that it had been leased. He assumed the defendant would move off when he was granted the lease. When the lease was confirmed by the Lands Department, he took that as confirmation that the land was vacant in terms of other claims.

I am satisfied that the settlement of the case in 1992 resulted in an agreement that the land was to be held by the defendants on a five year lease. That lease was never registered and, more significantly, there was no evidence of any attempt to renew the lease by the first defendant or by his son. Once the five years expired, the second plaintiff was entitled to consider that the land was available for lease and he was acting within the law to enter into the agreement with the first plaintiff.

The final prayer in the counterclaim is that the plaintiffs be estopped from taking the land because of the promises of the older Fetuli and the acceptance by the first defendant of his right to stay. He has, as has been stated, built a substantial house on the land in reliance, he told the court, on the promises made to him.

The evidence of these promises come from him but I do not find the other evidence supports his assertion that they continued and were intended to continue for the rest of his life. The decision to subdivide in 1963 appears to have included the first defendant but it does not accord with the suggestion that the defendant could stay on the land forever in recognition of his kindness. Put at its highest, it appears to place him in the same position as the others who took their subdivisions and who presumably were not able to rely on any previous good works. The court action brought by the older Fetuli in 1966 and his refusal of the first defendant's request that he register it in the name of his son, as the first defendant told the court was the case, also run counter to this suggestion.

I have already found that, by 1966, the older Fetuli had withdrawn any possible previous intention to allow the first defendant to stay on the land. I have no doubt that the first defendant knew that and he told the court he knew he had lost the 'api after the court case before Roberts J. That was the reason for his visit to the King in the 1970s. That he was not chased from the land after that does not, in such circumstances, necessarily give rise to any right to occupy although there may have been rent paid and accepted under an informal lease arrangement. Over that period the land was also in the possession of the widow and then the trustees for the young second plaintiff. Eventually, I am satisfied, the first defendant tried to confirm his position on the land. He obtained a lease permit for his daughter and a two year lease for the second defendant. The documents of 1988 followed and they show, read together with the scant information in the Land Department file, that the agreement was to regularise a leasehold that had expired some 8 months before. As a result of those agreements, a lease was ordered by the court when the case was settled in 1992. Since then there has been no further renewal. However, I consider that there is no equity that could give rise to any estopppel under section 103 of the Evidence Act or under the doctrine of acquiescence and, once the period agreed in the settlement of the court case in 1992 had expired, the second plaintiff was entitled to arrange a lease with another person.

The first and second defendants' counter claim fails against the plaintiffs and the third defendant. I give judgment to the plaintiffs on the claim. The third defendant has appeared only as a third party and has supported the claim of the plaintiffs. I give judgment to the third defendant on the prayer to confirm the lease of the first plaintiff.

The first and second defendants shall pay the costs of the plaintiffs and the third defendant to be taxed if not agreed.

I order that the first and second defendants vacate the land within two months.

NUKU'ALOFA: 4th January 2002

CHIEF JUSTICE