Fohe v Mahe [2022] TOCA 23; AC 21 of 2021 (10 October 2022)

IN THE COURT OF APPEAL OF TONGA
LAND JURISDICTION AC 21 of 2021

NUKU’ALOFA REGISTRY [LA17 of 2018]

BETWEEN

LORD FOHE Appellant

-and-

VE’ETUTU MAHE Respondent

JUDGMENT OF THE COURT

Coram: Whitten P

de Jersey J
Harrison J
Heath J

Counsel: Mrs F. Vaihu for the Appellant
Mr W. C. Edwards SC for the Respondent

Date of hearing: 5 October 2022

Date of Judgment: 10 October 2022

Introduction

[1] Until his death in 2009, Samiu Fohe (to whom we shall refer as the late Fohe) held the hereditary title of Fohe and the hereditary estate of Puke in Tongatapu. After the late Fohe’s death, the present appellant, Lord Fohe, was appointed as successor to that title, by letters of appointment signed by His Majesty, King Tupou VI, with effect from on 17 November 2016.

[2] In the latter stages of the late Fohe’s life, his daughter, Lupe, acted as his representative. That role afforded her the status of a “landholder” or “holder” of the estate: see the definition of “landholder” or “holder” in s 2 of the Land Act. She continued in that role in the period between the late Fohe’s death and the installation of Lord Fohe in 2016.

[3] Before the late Fohe’s death, the respondent, Ve’etutu Mahe, asked him for an allotment on the hereditary estate. Mr Mahe claimed that he had subsequently taken possession of part of the estate land and had made customary gifts to the late Fohe, as well as carrying out some repairs and maintenance to the late Fohe’s house without charge. In the period between the late Fohe’s death and the appointment of Lord Fohe in 2016, Mr Mahe built a house with a concrete foundation on the land, in which he and his family now reside. Mr Mahe also alleged that the late Fohe had promised to arrange a grant of the allotment and registration in his name, but that was not completed before his death.

[4] Following his installation, Lord Fohe indicated he was not prepared to honour any promise of the type that Mr Mahe alleged had been made. He issued a claim in the Land Court to evict Mr Mahe from the area that he occupied. He denied that anything that might have been said by the late Fohe gave Mr Mahe an enforceable right of occupation. At the time the proceeding was issued, there were four defendants, but for reasons given later, Mr Mahe was the only one who actively defended the Land Court claim.

The Land Court proceeding

[5] Lord Fohe sought eviction orders against all persons residing on his estate. The defendants did not file defences. During a formal proof hearing, and bearing in mind the potential impact of provisions such as ss. 34 and 35 of the Land Act, Niu J and an Assessor (at their instance) heard evidence from Lord Fohe and the town officer.

[6] In the result, the learned Judge ordered all defendants to vacate the land within three months and to pay damages and costs.

[7] Subsequently, only Mr Mahe filed an application to set aside the default judgment against him. After a contested hearing, the learned Judge set aside that judgment, with costs. Lord Fohe’s position before the Land Court was that he was appointed to the hereditary title from 18 November 2016, that Mr Mahe had built on his land without authority, and had failed to vacate after service of a notice calling on him to do so.

[8] Mr Mahe, defended the claim on the basis of an asserted equitable right to possession and counterclaimed for an order to be registered as lawful holder of the allotment. The learned Judge referred to s.35 of the Land Act and affirmed that Mr Mahe belonged to “another locality” (s.35(1)), so that Lord Fohe might refuse Mr Mahe permission to “take up residence”; and, if he were “coming to reside”, he might be ordered to leave (s.35(2)).

[9] however, on the issue of whether Mr Mahe, having built on the estate without an order to vacate, was already “lawfully resident”, so that s.50(a) accorded him a right to an allotment, the Judge held:

“[31] In the present case, [Lord Fohe] knew that he was the lawful heir to the title of Fohe because he said that he wrote, as was customarily required, to His Majesty after [the late] Fohe died that he was the lawful heir, with which letter he would have proved the required documents in proof thereof. He ought then to have taken charge of the estate, his inheritance, in accordance with the laws relevant thereto. He said he appointed the town officer as his representative after he was “appointed” as the Fohe, but that was after he was appointed in November 2016, and [Mr Mahe] and his wife and children had already become residents of the estate for 2 years.
[32] By then, [Mr Mahe], and his family, were no longer “coming to reside”. They had already become “lawfully resident” in the hereditary estate of Puke.
[33] Accordingly, I have come to the conclusion that the plaintiff estate holder cannot evict or seek an order to evict the defendant and his family as he has sought in this action, or to seek damages for their occupation of his estate.”

[10] As to Lord Fohe’s secondary position, that Mr Mahe was a licensee whose licence ended with the death 2 years later of the late Fohe, the Judge, relying on s.35, held:

“I do not think that an estate holder who has not exercised his right under s.35 can subsequently, after the person has become resident on his estate, claim that he had not granted him any right to reside on his estate”.

[11] The learned Judge accordingly upheld Mr Mahe’s claim of estoppel and dismissed Lord Fohe’s eviction application. However, he rejected Mr Mahe’s counterclaim for a grant of the allotment.

[12] Lord Fohe has appealed. Mr Mahe has not cross-appealed the decision to dismiss his counterclaim.

Submissions on appeal

[13] Lord Fohe’s first submission was that because the alleged grant by the late Fohe was verbal, it was not binding: reference was made to ss.6 and 43(2) of the Land Act and Vai v ‘Uliafu (1989) Tonga LR 56. Lord Fohe contended that Mr Mahe’s entry onto his land to build between 2012 and 2014, several years after the late Fohe’s death, meant he was a trespasser.

[14] It was also submitted that because there was no ‘estate holder’ when Mr Mahe was “coming to reside” between 2012 and 2014, he could not be said to be “coming to reside” in the property, for the purposes of s.35 of the Land Act.

[15] There was also an issue whether Lord Fohe could have acted to evict Mr Mahe immediately on the death of the late Fohe in 2012, albeit his appointment did not occur until 2016.

[16] The submissions before us ultimately centred on the issue as to whether the appellant was estopped by his permitting the respondent to live on the land, in terms of s.103 of the Evidence Act? The issue here is not ownership, but a right to reside; that is, not whether equitable ownership existed (which is excluded by s.6 of the Land Act), but whether Mr Mahe’s possession or licence to occupy was protected, with Lord Fohe being estopped from frustrating it.

Discussion

[17] In our view, the learned Judge was entitled to hold that Lord Fohe was estopped from evicting Mr Mahe, essentially for the reasons he gave. He reasoned that Lord Fohe had acquiesced in Mr Mahe’s occupation of the property on which he had built over some years, with knowledge on his part, at least for a time.

[18] The Judges’ relevant findings were as follows:

“[9] From the evidence given by both parties and their witnesses, I have found the following as the relevant facts.
[10] The estate of Puke is the hereditary estate of the Noble Fohe. The title of Noble Fohe was held by one Samiu Fohe from about 1978 to 2009. Because of ill health towards the end of his life, his daughter, Lupe, acted as his representative for some 7 years, before he died in 2009.
[11] In 2007, the defendant, who is the son of a sister of Samiu Fohe’s wife (Lupe’s mother) asked Samiu Fohe for a town allotment and Samiu Fohe pointed out to him a piece of land which was not far from where Samiu Fohe was living. The piece of land was still in bush and it was part of an unallocated area of some 14 acres.
[12] The piece of land pointed out is immediately behind an area of 2024m2 which had already been leased to one, Lord Tangi, by the main Hihifo Road. Because Lord Tangi’s area had been cleared and built on and was kept maintained, the piece of land allotted to the defendant was easily seen from the Hihifo Road.
[13] In appreciation of the gift of the piece of land to him, the defendant gave $1,000 to Noble Fohe on the same day. Two months later, he gave another $1,000 for father’s day, and $2,000 for his birthday in October that same year. On father’s day of 2008, he gave him 20 yams and a pig and in Christmas 2008 he gave him $1,000 and when Fohe was in hospital in 2009, he gave him $500. When Fohe died in April 2009, he took the traditional large pig and food crops for the food preparation.
[14] The daughter Lupe said that after Fohe gave the piece of land to the defendant, she went and saw the land surveyor to sub-divide the whole area of land (of 14 acres) so that the piece of land allocated to the defendant could be registered and was told that they would work on it, but that her father died before that could be done. She said that when the traditional mourning for the noble Fohe was completed, she went with the traditional presentation of food and Tongan wares to the King, George Tupou V, to thank him in the customary way, and that the King told her to continue to look after the people of the estate and to come and see him if she needed any holp.
[15] The town officer of Puke, Malolo Tupou, said that after Fohe died the people were asking him for land and he went to the Palace Office and asked what he was to do and that he was told to tell the people to wait until a new Fohe was appointed and that in the meantime he was to look after the people until then.
[16] In 2010, a man named Sepeti Haikeni and his family temporarily lived on the piece of land in question upon the direction of Lupe, with the consent of the defendant, and they left the land in 2011.
[17] In 2012 the defendant began to build upon the piece of land and his house was completed in 2014 and he and his family occupied it and have lived there up to now.
[18] The house is of concrete foundation and floor and wooden plywood walls and slanting corrugated iron roof. It is of strong construction because it withstood both Cyclones Gita in 2018 and Harold in 2020.
[19] The town officer, Malolo Tupou, was aware of the construction of the house but he did not stop it or question the right of the defendant to build it and to live in it with his family.”

[19] As held by His Majesty’s Privy Council in O.G. Sanft & Sons v Tonga Tourist and Development Co Ltd [1981-1988] Tonga LR 26, given the regime of the Land Act, “there can be no question of equitable titles”, with the effect of an estoppel being a personal restriction on a landholder from obtaining an eviction order, for a period which will depend on the particular facts of a case: see also Matavalea v Uata (1989) Tonga LR 101,103 and Vai v ‘Uliafu, ibid.

[20] In ‘Alisi Nginingini v Lupe Nginingini and Others [2018] TOLC 4; [2018] Tonga LR 32, Paulsen P, sitting in the Land Court, offered this analysis, which we respectfully adopt:

“[39] A third party may be bound by an equity when (1) they have acquired their interest with knowledge of the circumstances giving rise to the claimant’s equity and (2) in the circumstance of the case it would be unconscionable for the third party to assert his/her legal rights. In such a case the equity that binds the third party is not derivative but operates directly against the third party.
[40] Consistent with well established principles of equity, knowledge in this context must include actual knowledge but also knowledge that would have been acquired but for the shutting of one’s eyes to the obvious or wilfully and recklessly failing to make such enquiries as reasonable and honest person would make (Re Montagu’s Settlement [1987] 1 Ch 264).”

[21] Section 38(1) of the Land Act provides that, with an hereditary estate, His Majesty “shall cause the name of the lawful successor (of the holder who has died) to be published in the Gazette together with the date of his succession thereto which shall be the day following that on which the death of the holder took place....”. However, s. 39 provides:

39 Date of succession operates

The successor to the title if he attained the age of 21 years shall as from the date of succession published in the Gazette possess and enjoy the hereditary estate appurtenant to the title to which he has succeeded together with the rents and profits thereof and all other rights and privileges attached to the title.

.[22] The late Fohe represented to Mr Mahe in the terms alleged, and he acted on that representation; not only by the clearing and construction and living in the house, but also by giving the late Fohe a financial return. The development of the land had not been completed, but the late Fohe would have been estopped in equity had he sought to evict Mr Mahe. Allowing for the unbroken chain of succession from the late Fohe to Lord Fohe that is created by s. 39 of the Land Act, notwithstanding the absence of any appointment between 2009 and 2016, Lord Fohe is himself estopped from terminating Mr Mahe’s occupation of the land. Just as the late Fohe would have been estopped from evicting Mr Mahe, so likewise Lord Fohe is estopped, given Mr Mahe’s occupation and development of the land to which Lord Fohe raised no issue until the Notice to Vacate was issued in May 2017.

[23] Section 39 of the Act provides for an unbroken chain of ownership, giving rise to constructive knowledge, on the part of Lord Fohe, of the situation in which Mr Mahe finds himself though the relevant period of that unbroken chain. On the Judge’s findings of fact, the late Fohe indicated to Mr Mahe the allotment on which he subsequently built, and his daughter Lupe, while the late Fohe’s representative, set in train the process for subdivision and registration, although that was not accomplished prior to the late Fohe’s death. Lupe also encouraged Mr Mahe to build on the land after the death of late Fohe. She acted as the de facto representative of the eventual successor during the interregnum. Lord Fohe is fixed with the knowledge of both the late Fohe and Lupe.

[24] That analysis, and the result, are well illustrated by the following passage from Lupe’s evidence at trial:

Q: Is it true that Fohe Samiu has passed away?

A: Yes but everything was left with me. Everything regarding the estate holder on land, I was the one to contact because I have dealt with it for 7 years in representing my father.

Q: Just to clarify, so you are saying that even if your father has passed away you will still be the estate representative?

A: Yes.

Q: In paragraph 15 of your evidence it states (read the document) why were you shocked?

A: I didn’t anticipate that he would treat the people this way, I thought that he would continue with good grace the work my father did and that is why I was shocked.

Conclusion
[25] Accordingly, the appeal is dismissed with costs to the respondent to be taxed if not agreed.

Whitten P

de Jersey J

Heath J

Harrison J