Toutai v Save [2022] TOCA 19; AC 1 of 2022 (10 October 2022)

IN THE COURT OF APPEAL OF TONGA
LAND JURISDICTION AC 1/22
NUKU’ALOFA REGISTRY (LA 8 of 2021)

BETWEEN LA’IE ‘OAHU TOUTAI APPELLANT

AND ‘ONIKI SAVE and ‘ESETA SAVE RESPONDENTS

Coram: Whitten P

de Jersey J

Harrison J

Heath J

Counsel: W C Edwards SC for Appellant

S T Tu’utafaiva for Respondents

Hearing: 5 October 2022

Judgment: 10 October 2022

JUDGMENT OF THE COURT

The appeal

[1] La’ie ‘Oahu Toutai (La’ie) appeals against a judgment of the Land Court, made on 7 December 2021, whereby it dismissed his application for an order that a married couple, ‘Oniki Save (‘Oniki) and ‘Eseta Save (‘Eseta), vacate a property at Ha’akame of which he was the “holder”.^[1]

Background

[2] On 1 October 1987, La’ie applied for the grant of a town allotment.^[2] The application was in respect of a parcel of Crown land situated at Ha’akame, Tongatapu. The land consisted of 35 perches, more or less being Lot 2 Plan 77/88P2 and is known as “Talifolau” (the allotment). By letter dated 23 October 1987, the Minister of Lands (the Minister) directed that the allotment be measured and subdivided, with La’ie to receive one of the subdivided portions. At the time, La’ie believed that he had paid the required fee (something that the Minister’s letter appears to confirm), it later transpired that he had not done so.
[3] La’ie left Tonga in 1988 to live in the United States of America. Although he visited from time to time, he did not return to reside in Tonga until 2020. In 2015, on one of his visits to Tonga, he became aware that the fee had not been paid. The fee was then paid and receipted. On 4 June 2015, a Deed of Grant of the allotment was issued by the Minister in favour of La’ie. Although the formal grant was not documented until 2015, it is common ground that La’ie became the “holder” of the allotment on 23 October 1987, when the Minister’s letter of that date was issued.
[4] Sometime in 1998, ‘Oniki and ‘Eseta began to live on the allotment on the basis of (what they alleged) was a gift made by La’ie’s mother, Mele’ofa Toutai (Mele’ofa). There was a dispute about whether Mele’ofa was in Tonga at the time that the asserted “gift” was made, but nothing turns on that point in the determination of this appeal. At the time the allotment was allegedly gifted by Mele’ofa to ‘Onika and ‘Eseta, La’ie continued to reside in the United States of America. Our impression, from the evidence, is that La’ie was not expected to return to live in Tonga.
[5] However, La’ie was deported to Tonga in February 2020. On his arrival in the Kingdom, he endeavoured to recover possession of the allotment. ‘Oniki and ‘Eseta declined to vacate. They had erected improvements on the land over the period of about 20 years that they had been in occupation.
[6] La’ie applied to the Land Court for an order evicting ‘Oniki and ‘Eseta and granting possession of the allotment in his favour (the eviction application). ‘Oniki and ‘Eseta resisted the eviction application on the grounds that they had an equitable right to possess and occupy the allotment, as a result of Mele’ofa “gifting” the allotment to them in 1998.

The Land Court proceeding

[7] The eviction application came before Niu J and an Assessor in the Land Court on 11 and 12 October 2021. In a judgment delivered on 7 December 2021, Niu J dismissed the application, with costs in favour of ‘Oniki and ‘Eseta.
[8] Niu J was satisfied that La’ie was estopped from denying he had agreed that ‘Oniki’ and ‘Eseta could retain possession of the allotment as their own. The Judge took the view that, because ‘Oniki and ‘Eseta had expended energies and resources for some 20 years to build and maintain a dwellinghouse on the allotment, an “estoppel [bound La’ie] until he [died] or until his interest as holder [ended], either by abandonment or by surrender”.

Grounds of Appeal

[9] La’ie advances five grounds of appeal:

• (a) First, he challenges Niu J’s decision on the basis that there was no evidence of any communication between La’ie and his mother which would have authorised her to allow ‘Oniki and ‘Eseta to remain on his allotment.
• (b) Second, he contends that any purported “gifting” of the allotment by his mother to ‘Oniki and ‘Eseta was illegal; on the basis that it was in breach of s 5, 6 and 82 of the Land Act.
• (c) Third, in finding as a fact that La’ie was aware that his mother had given the allotment to ‘Oniki and ‘Eseta, the Court had “accepted and approved an illegal conveyance of the town allotment contrary to s 5, 6 and 82 of the Land Act”.
• (d) Fourth, there was no evidence to support the Judge’s finding that La’ie allowed ‘Oniki and ‘Eseta to live on the allotment and keep it as their own.
• (e) Fifth, the Judge erred in concluding that La’ie was estopped from denying that he had agreed that ‘Oniki and ‘Eseta could keep the allotment as their own.

[10] In our view, the grounds of appeal reduce to two:

• (a) The first is whether it was open to the Judge to give effect to the type of arrangement that he had found to exist, by way of estoppel, having regard to s 5, 6 and 82 of the Land Act;
• (b) The second is whether there was evidence to support a finding by the Land Court that an estoppel arose that was binding on La’ie and had the effect of preventing him from denying ‘Oniki and ‘Eseta possession of the allotment.

Analysis

[11] The starting point is s 43 of the Land Act, which provides:

43. (1) Every male Tongan subject by birth of 16 years of age not being in possession of a tax or town allotment shall be entitled to the grant of a tax or town allotment or if in possession of neither to the grant of a tax and town allotment.

(2) The grant shall be subject to the provisions of this Act and shall be made in accordance with the following rules-

(a) the applicant shall make an application on the prescribed form* to the Minister;

(b) the applicant shall produce for the inspection of the Minister his birth certificate or some other proof of the date of his birth;

(c) the applicant shall pay the prescribed fees.

[12] Section 7 of the Land Act provides that every “male Tongan subject by birth upon making [an application in a prescribed form] shall be entitled, to allotments, receive subject to the provisions [of the Land Act] a grant of land not exceeding 3.3387 hectares as a tax allotment ...”. La’ie became the holder of the allotment when it was acquired on 23 October 1987.^[3] As such he became the “holder” of the allotment for the purposes of the Land Act. In terms of s 4 of the Land Act, La’ie had a life interest in the allotment. By s 5, the allotment was hereditary, in accordance with the prescribed rules of succession, set out in s 82 of the Land Act.
[13] The Tongan system of land tenure is underpinned by s 6 of the Land Act which prohibits the disposition of land. Section 6 provides:

Dispositions of land prohibited

6. Every verbal or documentary disposition by a holder of any estate (tofia) or allotment (api) which purports to effect a voluntary conveyance, an out-and-out sale, or a devise by will of such estate or allotment is null and void.

[14] Two points can be made immediately about s 6:

• (a) First, it applies to the holder of the land, in this case, La’ie.
• (b) Second, any attempt by La’ie to gift the allotment outright to another party would be “null and void”.

[15] In OG Sanft and Sons v Tonga Tourist and Development Co Ltd,^[4] His Majesty’s Privy Council considered the circumstances in which the Land Court might exercise jurisdiction to apply rules of equity to ameliorate the harshness of the general prohibition. The Privy Council held that clause 90 of the Constitution and s 3 of the Civil Law Act (Cap 14) authorised Courts within the Kingdom to apply “the common law of England and the rules of equity”, subject to any specific Act or Ordinance in force in Tonga.^[5]
[16] The Privy Council accepted that the Land Court was empowered to exercise equitable jurisdiction but there remained an issue as to its extent, given the nature of Tongan land tenure; in particular s 6 of the Land Act. The Privy Council said:^[6]

“In respect of Tongan land, the Land Act is a complete code; ... with the consequence that no estate right, title or interest can be created in accordance with the provisions of the Act.”

[17] The Privy Council took the view that a right to possess land, based on conduct amounting to an estoppel, was different in kind to the creation of an equitable estate or interest in land.^[7] That view was endorsed by the Privy Council in Matavalea v Uata.^[8] As a result, a right of occupation could arise if an estoppel were raised against the holder of the land.
[18] In OG Sanft, the Privy Council accepted that the operation of the equitable doctrines of acquiescence and estoppel in land law sprang from s103(2) and (3) of the Evidence Act (Cap 13):

(2) If a person, either in express terms or by conduct, makes a representation to another of the existence of a certain state of facts which he intends to be acted upon in a certain way, and it is acted upon in that way in the belief of the existence of such a state of facts to the damage of him who so believes and acts, the first is estopped from denying the existence of such a state of facts.

(3) If a person, whatever his real meaning may be, so conducts himself that a reasonable man would take his conduct to mean a certain representation, and that the latter was intended to act upon it in a particular way, and he with such belief does act in that way to his damage, the first is estopped from denying that the facts were as represented.

[19] The Privy Council, in Matavalea v Uata, in the context of the particular facts with which it was concerned, emphasised that a person seeking to resist an eviction application based on an estoppel “acquires no rights in land of any description and neither do [the] heirs”. It continued:^[9]

The only effect of the estoppel is to impose a personal restriction on the Appellant from obtaining an eviction order during her life tenancy. What happens on her death or on termination of her life interest remains for future consideration.

[20] In his brief of evidence, confirmed under oath when he gave oral evidence before the Land Court, La’ie acknowledged that he had become aware, at some stage during his time in the United States, that ‘Oniki and ‘Eseta had “moved in and occupied” the allotment in 2002. He said that he did not give permission for them to do so but that they claimed his mother had given “temporary permission” to occupy the land “as they had nowhere to live”. Therefore, while not challenging what his mother may have done, and not taking any immediate steps to secure eviction, La’ie rejects any suggestion that he authorised the gifting of the allotment to ‘Oniki and ‘Eseta.
[21] Mr Edwards SC, for La’ie, submits there was no evidence of any communication between La’ie and his mother which would have authorised her to “gift” the allotment to ‘Oniki and ‘Eseta on the basis that they allege. We agree that the furthest that the evidence goes is to fix La’ie with knowledge, at some time when he was living overseas, of the fact that his mother had given “temporary permission” to ‘Oniki and ‘Eseta to occupy the allotment for their own purposes.
[22] Niu J found, as a fact, that La’ie knew that ‘Oniki and ‘Eseta were living on the allotment. Indeed, he went so far as to find that La’ie had “agreed that they live there” with no “time limit”.^[10] We are satisfied that, even if the Judge had rejected La’ie’s evidence, there were no primary facts from which he was entitled to draw an inference that La’ie had agreed that ‘Oniki and ‘Eseta could live on the allotment indefinitely.
[23] Despite the submission of Mr Tu’utafavia, for ‘Oniki and ‘Eseta, that we should not disturb the Judge’s findings of fact given his advantage of having seen and heard the witnesses,^[11] the absence of any plausible narrative to support a factual finding constitutes a basis on which an appellate court can interfere with a trial Judge’s finding of fact.^[12]
[24] The absence of such evidence, in our view, destroys the substratum of ‘Oniki’s and ‘Eseta’s argument. There was no basis on which La’ie’s mother could have given permission in the form alleged by ‘Oniki and ‘Eseta. La’ie never gave the necessary authority to do so.
[25] Even if there had been an evidential foundation for a submission that Mele’ofa had La’ie’s authority to gift the allotment to ‘Oniki and ‘Eseta, an absolute gift would have been null and void, under s 6 of the Land Act. If, as Niu J held, what was said amounted to the creation of an estoppel having the effect of denying La’ie the opportunity to contend that the occupiers should be evicted, we are satisfied that any form of occupation short of an estate or interest in land (as envisaged by the Privy Council in OG Sanft) was temporary in nature, and ended upon La’ie’s return to Tonga or on his earlier death. Mr Tu’utafavia was compelled, when asked, to concede that if La’ie had died (say) in 2000, about two years after the alleged promise had been made by his mother, any occupation rights would have terminated, and the allotment would have passed by succession to those entitled as a matter of law. That concession was inevitable having regard to ss 4 and 82 of the Land Act.
[26] Our conclusion is reinforced from an examination of evidence given by both ‘Oniki and ‘Eseta in the Land Court. They acknowledged that, after La’ie returned to Tonga, they had made comments that they would move elsewhere when he sought return of the land. When he did return, their initial response was to ask for time to do so. Their actions are consistent with La’ie’s position that they knew any rights of occupation were temporary in nature.

Result

[27] For the reasons given, the appeal is allowed. The Land Court’s dismissal of La’ie’s claim is set aside, and in substitution we make an order removing ‘Oniki and ‘Eseta from the allotment and granting possession to La’ie. ‘Oniki and ‘Eseta shall yield up the allotment to La’ie on or before 31 October 2022.
[28] We set aside the order for costs made against La’ie in the Land Court. In substitution, we make an order that Lai’ie’s costs shall be paid by ‘Oniki and ‘Eseta in both the Land Court and this Court. In the absence of agreement, costs in both Courts shall be taxed.

Whitten P

de Jersey J

Harrison J

Heath J

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^[1] Toutai v Save (Land Court, Nuku’alofa Registry LA 8 of 2021, 7 December 2021). The term “holder” is defined by s 2 of the Land Act.
^[2] The application was made under s 43(1) of the Land Act., set out at para [11] below.
^[3] See para [3] above.

^[4] OG Sanft and Sons v Tonga Tourist and Development Co Ltd [1981-1988] Tonga LR 26.
^[5] Civil Law Act s 7.
^[6] Ibid, at 33.
^[7] Ibid, at 31 and 34.
^[8] Matavalea v Uata [1989] TLR 101.
^[9] Ibid, at 103.
^[10] Toutai v Save (Land Court, Nuku’alofa Registry LA 8 of 2021, 7 December 2021) at para 24.

^[11] Moeaki v Tapueluelu (Court of Appeal Nuku’alofa AC 9 of 2022, 9 August 2022, White, Estcourt and de Jersey JJ) at para 25.
^[12] Edwards (Inspector of Taxes) v Bairstow [1955] UKHL 3; [1956] AC 14 (HL) at 29.