Telefoni v Tunitau [2025] TOCA 4; AC 2 of 2025 (16 May 2025)

IN THE COURT OF APPEAL IN TONGA
IN THE LAND COURT OF TONGA
NUKU’ALOFA REGISTRY

AC 2 of 2025
[LA 18 of 2019]

BETWEEN
‘ESETA TELEFONI
Appellant

AND
MOEAKI ‘USAIA TUNITAU
Respondent

Hearing
9 May 2025

Court
Randerson J
Harrison J
Morrison J

Appearances
Sione ‘Etika for the Appellant
William Edwards for the Respondent

Judgment:
16 May 2025

JUDGMENT OF THE COURT

Introduction

[1] Moeaki Tunitau is the registered holder of a tax allotment at Ma’ufanga. He allowed ‘Eseta Telefoni and her family to live there for 45 years before giving her notice to vacate. Following a defended hearing in the Land Court, Tupou J sitting with a land assessor granted Mr Tunitau’s application for an order that Ms Telefoni and her family vacate the land.
[2] Ms Telefoni now appeals against the judgment on a number of grounds.

Facts

[3] The relevant facts are not in material dispute. The contest centres on what was said between the parties and the steps allegedly taken as a consequence.
[4] Mr Tunitau was at all times registered as holder of a tax allotment known as Makamaka. It comprises seven hectares and 2.5 perches. Part of the land is known as Lot 5, comprising 30 perches.
[5] The parties are distantly related through one Kelepi. He is Mr Tunitau’s paternal cousin and Ms Telefoni’s maternal uncle. Sometime between December 1978 and March 1979, Kelepi introduced Ms Telefoni to Mr Tunitau. She was a young recently married schoolteacher from the outer islands, with one young child, who needed to somewhere to live on Tongatapu. On her behalf Kelepi was seeking a place for Ms Telefoni to live on Mr Tunitau’s land
[6] Mr Tunitau agreed to allow Ms Telefoni and her family to live on Lot 5. There was a pivotal dispute about the basis on which Mr Tunitau gave his consent. Ms Telefoni asserted an intention to own the land and live there as her own town allotment. Mr Tunitau, on the other hand, insisted that the arrangement was always to be temporary. The judge and assessor accepted Mr Tunitau’s account.
[7] Lot 5 comprised swampy land. Ms Telefoni had to fill it in if she wished to build a house to live there. In February 1979, shortly after entering into this arrangement, Mr Tunitau gave his written consent to Ms Telefoni’s application for a bank loan of $5,000. Its purpose was to fund the construction of a two bedroomed home with a living room and separate bathroom and toilet on Lot 5. Later, in October 1985, Ms Telefoni’s husband borrowed further funds to construct a larger, five bedroomed house on Lot 5. Mr Tunitau’s consent was not sought on this occasion. A dispute arose about whether his alleged agent gave approval on his behalf. Tupou J found in Mr Tunitau’s favour but that finding is not dispositive.
[8] In 1995 Ms Telefoni, her husband, her son and older daughter shifted permanently to Australia. Her younger daughter, her family and relatives remained on Lot 5. Ms Telefoni apparently did not advise Mr Tunitau of this move. In 2006 she became a naturalised Australian citizen. In 2019 Mr Tunitau, who also had lived permanently in Australia for many years but returned to Tonga each December, learned that Ms Telefoni and most of her family had relocated to Australia. He instructed his lawyer to issue a notice to vacate and set in train the steps leading to the judgment under appeal.
[9] Tupou J found for Mr Tunitau primarily based on her preference for his account of the initial arrangement and for his evidence generally whenever it differed from Ms Telefoni. Tupou J was not satisfied either that Mr Tunitau had gifted the land to Ms Telefoni or that he had conducted himself in a manner which might raise an estoppel against exercising his legal rights. The judge found that Ms Telefoni held the land throughout as a bare licensee.

Appeal

[10] Ms Telefoni appeals on five grounds. On analysis they are variations on a common theme of challenge to Tupou J’s factual findings. They are grouped loosely around the grounds that Mr Tunitau gifted Lot 5 to Ms Telefoni or is estopped by acquiescence from exercising his ownership rights over the land.
[11] First, in support of the gift ground of appeal, Mr ‘Etika submits that the Judge failed to provide any or adequate reasons for her acceptance of Mr Tunitau’s evidence wherever it differed from Ms Telefoni. This preference was central to her dismissal of both the gift and estoppel defences. We accept that Tupou J did not give reasons other than to express her preference for Mr Tunitau’s evidence based on observations of the witnesses at trial. Demeanour findings can be problematic. However, while it is always preferable for a judge to give reasons, even brief, for credibility or reliability findings, the circumstances are inconsistent with Mr Tunitau’s alleged agreement to part with ownership.
[12] We note that immediately after expressing her preference for Mr Tunitau’s evidence, the Judge rejected a submission that an inference could safely be drawn that Mr Tunitau gifted Lot 5 to Ms Telefoni. Mr Etika’s reliance on inference is an acknowledgement that there was no direct evidence of a gift. The Judge was satisfied that there was no safe factual foundation for drawing an inference in Ms Telefoni’s favour.
[13] Tupou J found expressly that Ms Telefoni’s request was limited to land to live on; and that Mr Tunitau’s permission was granted on that basis. Mr Etika challenges that unequivocal finding before us, relying on the Judge’s acceptance of Kelepi’s evidence that he said words to Mr Tunitau to the effect that “This is my niece, she is from outer islands, I’m seeking for a plot of land for her and her family to live on”. He challenges the Judge’s reliance on Ms Telefoni’s letter which she drafted and was signed by Mr Tunitau, to the effect that Mr Tunitau had given permission for her to build a house on Lot 5.
[14] We are satisfied that the Judge’s conclusion is supported by evidence of the surrounding circumstances. The letter was written shortly after Mr Tunitau gave his consent for Ms Telefoni to live there. It referred specifically to “my allotment”. It was open to the Judge to accept the terms of the letter as an accurate reflection of the parties’ understanding that Ms Telefoni was to live on the land. That was the limited scope of their agreement, subject to the implied condition of termination once Ms Telefoni ceased occupation.
[15] There was no basis for inferring that the agreement extended to a right of ownership. The parties were apparently unknown to each other until introduced by Kelepi. It is implausible that Mr Tunitau would then agree to give the land outright to his distant, hitherto unknown, relative to own, especially given Tonga’s highly prescriptive regime of land ownership. As the Judge noted, the parties never invoked the steps required by section 54 of the Land Act to surrender ownership of an allotment.
[16] In this respect Mr Etika accepted before us that Ms Telefoni would have been unable to acquire a legal interest in the land. At best she could contend for an equity, to occupy for her lifetime. A gift, to be effective, has to be absolute. But, based on Mr Etika’s rightful acknowledgement, any gift from Mr Tunitau could never have been perfected or completed. Her argument was effectively for a lifetime licence to occupy which is unsustainable in the face of the Judge’s finding that Ms Telefoni’s right was as a bare licensee.
[17] Second, Mr Etika submits that the weight of the undisputed evidence establishes Ms Telefoni’s defence of estoppel by acquiescence. In support he refers to the factors already discussed, namely that: (a) Lot 5 was swampy ground and Ms Telefoni had to fill it in in order to build, with support from Mr Tunitau; and (b) Ms Telefoni and her family (or at least some of them) have lived on Lot 5 undisturbed by Mr Tunitau from 1979 to 2019.
[18] We do not accept this submission. An estoppel by acquiescence arises where it would be unconscionable to allow one party to enforce a legal right in circumstances where his or her earlier silence, inactivity or standing by has allowed another party to act their detriment^[1]. The conduct complained of must be unequivocal.
[19] Here it is not in doubt that Mr Tunitau permitted Ms Telefoni to occupy Lot 5. The fact that he supported her application for funds to build a house there shortly after giving that permission cannot be construed as contrary to his ownership rights. The land without a house would be of no use to Ms Telefoni. She was already enjoying a great benefit from the right to occupy free of charge, and it is not suggested that Mr Tunitau should fund her construction of a house. The parties apparently assumed that Ms Telefoni would bear that financial responsibility.
[20] Ms Telefoni’s occupation of the land for the next 15 or so years is entirely consistent with that arrangement. She vacated the property when she moved to Australia in 1995 and the purpose of her licence expired. Mr Tunitau’s silence over that period or subsequently did not cause Ms Telefoni to alter her position in any way. He apparently assumed that she remained long after she had left. Her daughter who now apparently lives on Lot 5 has no independent right to challenge Mr Tunitau’s application.

[21] In this respect, Mr ‘Etika challenged the judge’s finding that, when served with the notice to vacate Lot 5 in 2019, Ms Telefoni did not immediately declare that Lot 5 had been gifted to her permanently. Instead, she said that she did not want to live on the land as it was cursed. Ms Telefoni explained that a young lady who lived on the land, whom she actually described as ‘her tenant’, had engaged in criminal activities. We note that this form of occupation was hardly consistent with the alleged gift of land for Ms Telefoni’s own use.

[22] We are not satisfied that Ms Telefoni has established any of the grounds of her appeal. In our view Tupou J had a proper evidential basis for finding that Mr Tunitau, when approached by Kelepi, out of the goodness of his heart gave Ms Telefoni permission to live on Lot 5 with her children; and that when the condition of his grant had expired, and Ms Telefoni and her family left the land, Mr Tunitau was entitled to rescind his consent.

Result

[23] The appeal is dismissed.

[24] Ms Telefoni is ordered to pay Mr Tunitau costs to be fixed by the Registrar together with reasonable disbursements if not agreed.

Randerson J

Harrison J

Morrison J

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^[1] See this Court’s recent discussion of the relevant principles in Kaitapu AC 2 of 2024