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Fonohema v Piukala [2001] TongaLawRp 53; [2001] Tonga LR 286 (15 November 2001)

IN THE LAND COURT OF TONGA
Land Court, Nuku'alofa

L 8/2001

Fonohema

v

Piukala

Ford J
22, 23, 24, 27, 28 August, 6, 7, 11, 12 September 2001; 15 November 2001

Land law – agreement for sale and purchase of ‘api – unclear terms of contract
Contract law – agreement for sale and purchase of ‘api – unfair and oppressive – voidable
Law practitioners — conflict of interest – abused relationship of trust

The plaintiff returned to Tonga with his family after living in the United States for 24 years. He saw an advertisement for a property in Ha'ateiho and was immediately interested. He and his brother visited the 'api and met with the owner Kelepi Piukala, the defendant. Kelepi was a law practitioner with 12 years experience. When the plaintiff saw the defendant's property in August 2000 he liked it and after a period of negotiation he agreed to buy it. His wife returned from the States and the family eventually moved into the house on about 1 Dec 2000. Thereafter, major problems started to develop between the parties over what exactly had been agreed to in the purchase agreement. Matters came to a head in the early months of 2001. In March the defendant wrote to the plaintiff ordering him to vacate the property within 10 days. The defendant, with the assistance of security guards, attempted to forcibly evict the plaintiff's wife from the property. The electricity and telephone supplied to the property was cut off by the defendant. On 11 May 2001 the Chief Justice granted the plaintiff an injunction on his ex parte application which was intended to maintain the status quo pending the hearing of the substantive proceeding. The injunction prohibited the defendant from entering the allotment at Ha'ateiho and from disconnecting or interfering with the supply of electricity, water and telephone services to the property. That injunction remained in force. The court was required to determine exactly what the parties agreed to in the course of their negotiations. The plaintiff sought specific performance of the verbal agreement.

Held:

1. The Court was satisfied that the plaintiff signed the agreement dated 12 September confident that the defendant had simply recorded therein all the terms of their verbal agreement. He did not know what the agreement, in fact, said but he trusted Kelepi the lawyer. As the plaintiff did not know what the agreement contained, there was no consensus ad idem and, therefore, the 12 September written agreement was invalid.