Hafoka v Mokofisi [2001] TOCA 17; CA 15 2000 (27 July 2001)

IN THE COURT OF APPEAL OF TONGA
ON APPEAL FROM THE
SUPREME COURT OF TONGA

APPEAL NO. 15/2000

BETWEEN:

SIAOSI HAFOKA
Appellant

AND

MANU MOKOFISI
Respondent

Coram:
Ward CJ Burchett J Tompkins J

Counsel:
Mr S. Tu'utafaiva for appellant
No appearance for respondent

Date of Hearing: 17 July 2001
Date of Judgment: 27 July 2001

JUDGMENT OF THE COURT DELIVERED BY WARD CJ

[1] This is an appeal from the refusal by Mr Justice Finnigan of a claim to evict the respondent from part of the appellant's tax allotment.

[2] The facts are clearly set out in the Judgment:

"The plaintiff [appellant] is the registered holder of a tax allotment in Tofoa. Earlier, it was the land of his father Fa'aitu, who died in May 1980 after which it was held by his widow 'Akosita, the plaintiff's mother, until her death. The plaintiff became the registered owner on 17 March 1997.

In 1978, the plaintiff wanted to go to America with his family. He told the Court that he had money for that, but he needed more. So he asked the defendant [respondent] (and others) for $200 each, which the defendant (and the others) gave him, and in exchange the plaintiff gave them the right to occupy parts of the tax allotment. The dispute in this case is over the extent of that right. The defendant claims it was to be permanent and that he was promised a registered title. The plaintiff stated in evidence that he did not intend to surrender his rights permanently for $200 per allotment."

[3] The learned Judge found that the agreement to give the respondent the right to occupy parts of the land included the promise to have part of the allotment registered in the name of the respondent for his son to inherit. That finding of fact is not challenged in this appeal.

[4] There were two grounds of appeal:

"1. His Honour erred in law in holding the appellant promised to give up the right to occupy part of his inheritance and took money in return, and there is nothing in the Land Act to prevent that.

2. The learned judge erred in law in holding that proof of the agreement that the appellant made in 1978 is a shield against his claim for eviction of the defendant."

[5] In view of the decision of the Privy Council in Matavalea v Uatu [1989] Tonga LR 101 that, whilst the principles of equity cannot give any right to title to land, they may give protection in a case such as this for possession, Mr Tu'utafaiva does not pursue the second ground.

[6] His case on the first ground of appeal is that the agreement was in breach of the provisions of the Land Act, was therefore null and void and could not be relied upon by the respondent as defence. He suggests the agreement breaches sections 6 and 13 and therefore contradicts the passage from the judgment of the learned judge underlined in the first ground.

[7] Section 6 of the Land Act provides that any disposition of any allotment which purports to effect a voluntary conveyance, an out-and-out sale, or a devise by will is null and void. The agreement was, Mr Tu'utafaiva suggests, an attempt to make a voluntary conveyance of the land and, by section 6, it is null and void. Further he points out that, by section 13, any landholder who enters or attempts to enter into any agreement for profit or benefit relating to the use or occupation of his holding or part thereof other than in the manner prescribed by the Land Act or as approved in writing by the Minister of Lands commits an offence. This was, he says just such an agreement.

[8] We cannot agree. What the learned judge found to be established by the evidence was an agreement that the appellant would, on his return from America, have the land registered in the respondent's name. In anticipation of that, the respondent was permitted to live on the land. There is nothing to suggest the registration of the land would be done other than in accordance with the requirements of the Act. Neither section 6 nor section 13 were contravened and the learned judge found that was the case.

[9] The problem the appellant faces here is that the claim in the court below was not to effect registration of any interest or to prove title. The appellant simply sought an order to evict the respondent and the respondent pleaded estoppel on the basis of the agreement. He relied on the provisions of section 103(3) of the Evidence Act. The trial judge upheld that defence. The other issues advanced by Mr Tu'utafaiva were also raised at the trial. The learned judge considered them but concluded that any other remedy was not available within the limits of the case he was trying. He explained:

"The legal issue arising is whether the promise to surrender the defendant a registered interest in part of his allotment can be enforced against him without a breach of the Act. That is not an issue raised by the pleadings in the present case."

[10] We must take the same position. The case in the Land Court solely sought the eviction of the respondent. On that, the judge's conclusion is in the passage quoted in part in the first ground of appeal:

"... the plaintiff's promise, so far as the Act is concerned, is worthless.

[11] By his promise however the plaintiff made a contract, and the law will not lightly release him from it. That is where the principles of estoppel enter into the land code. He promised to give up the right to occupy part of his inheritance and took money in return and there is nothing in the Land Act to prevent that."

[12] Later he continued:

"What legal steps [the plaintiff] might have been obliged by his agreement and permitted by the Act, to take are for another time. For the present case, proof of the agreement that he had made in 1978 is a shield against his claim for eviction of the defendant. This is provided by section 103 of the Evidence Act, cap 15, particularly section 103(3)....

I uphold the defence of estoppel. That defence prevents the plaintiff from overlooking his own promise and asserting his right to occupy the part of his allotment that the defendant occupies."

[13] We agree with the learned judge's finding. This was an action for eviction only. Mr Tu'utafaiva, who was not counsel in the court below and did not draft the claim, seeks understandably to widen the issues before this court. He cannot do so and the points he raises are not relevant to the issue of whether estoppel was established.

[14] The appeal is dismissed.

[15] The respondent's counsel sought to withdraw because he had not been instructed and the respondent did not appear despite being told of the hearing by his erstwhile counsel. In those circumstances we make no order for costs.

Ward CJ
Burchett J
Tompkins J