Hafoka v Mokofisi [2000] TOLC 1; L 1202 1996 (23 June 2000)

IN THE LAND COURT OF TONGA
NUKU'ALOFA REGISTRY

NO.L. 1202/96
BETWEEN

SIAOSI HAFOKA
Plaintiff
AND

MANU MOKOFISI
Respondent

BEFORE HON JUSTICE FINNIGAN
AND ASSESSOR, MR SIAOSI BLAKE

Counsel:
Mr Hola for plaintiff
Mr Muller for defendant

Dates of Hearing: 13 March, 3 May 2000
Submissions received: 5 May, 9 May 2000
Date of Judgment: 23 June 2000

JUDGMENT OF FINNIGAN, J

The plaintiff 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 holder on 12 March 1997.

In 1978, the plaintiff wanted to go in a hurry to America with his family. He' told the Court that he had money for that, but he needed more. So he asked the defendant (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. He stated that $200 was not a large sum to him because he could raise $400 in 3 days.

The plaintiff was able to make such arrangements, even though at that time it was his father who was the landholder, because he was the heir, and both his father and his son, his own heir, consented to them. On 11 September 1978 the plaintiff prepared a letter addressed to the Police Department at Nuku'alofa, which he and his son and his father all signed. The letter was as follows:

I write this letter as evidence this year on the 11^th September 1978. 1 am Siaosi Hafoka and my son Fa'aitu Hafoka (Jr) we are the heirs to the tax allotment of my father Fa'aitu, Hafoka (Sr) the tax allotment is situated at Tofoa, Tongatapu.

I and my son are about to depart to America to search educationally for the land of Tupou but the reason for this letter is there is a Free Wesleyan Church already built on this land. There has been a lease agreement with Fa'aitu (Sr) to take a portion for the Church to lease but we have been advised by the Hon. Minister of Lands to wait until Fa'aitu, (Jr) is of legal age then we come back to complete the lease agreement. There are also people waiting at the land, Siua Topeni, Manu Mokofisi, Sione Kaveinga, Haisini ‘Asitomani, Pepe Fasi, Tongi Pala, 'Ifa, Samiuela Fangaloka.

For that reason I ask that your Department do protect these people from being lied upon., evicted or causing any trouble from my brothers, relatives or friends while at the same time there is plenty of land available for them to work on except the piece of land where the above people are living. I am writing this letter with all of us agreeing to it.

Siaosi Hafoka (Heir)
Fa'aitu. Hafoka (Jr, Heir to Siaosi)
Fa'aitu Hafoka (Sr, Landholder and father)

The plaintiff then left for America. He returned in 1995 and found the defendant well established on the land. The defendant had built a brick house, and had done so a little way from where the plaintiff expected it to be. A mango tree that should have been there was gone. The plaintiff thought the defendant had cut it down to make room for the house. The plaintiff told the Court he had allowed him to build only a temporary house on a particular part of the land and did not expect him to build it somewhere else or to cut down the tree. He is willing to surrender part of the land to the defendant (and parts to the other similar occupiers), and has offered them this, but only on payment of $8 000 from each.

Hence this dispute. The plaintiff offers to surrender a registered interest to the defendant, in exchange for $8,000, but the defendant claims that was already promised a registered interest for his payment of $200 in 1978. He refuses to pay any more. Now the plaintiff sues for his eviction and for removal of his buildings and of any topsoil that he has brought in.

The defendant stated in evidence that he knew the land belonged to the plaintiff's father, and that the plaintiff had arranged for him to live on it. He stated that the plaintiff came to him and asked for $200 so he could go to. Hawaii. He said he paid the $200 and was shown a part of the allotment. He stated that the plaintiff put signs at each corner of the part he was to live on and told him to live on that part until the plaintiff's son had reached legal age, after which the whole allotment was to be subdivided, and his part would be given to him for his son. He said the plaintiff that same year departed to America, and he did not see him again, nor did he know where he was. He himself had moved onto the allotment after two years and cleared it, then had built a small house for himself and his family. There had been a big hole, on which his house floated after heavy rain, and it had been his ambition to fill the hole, but in 1982 Hurricane Isaac had destroyed the mango tree which fell onto his house and demolished it.

He stated that he then had moved to higher ground a little way away and in 1990 had built a concrete house, after waiting for the plaintiff to come and then all the time looking out for the plaintiff so he could advise him of it. However, he had not seen the plaintiff at all until he came back from America. He received an eviction letter, then these proceedings commenced in 1996, after he had occupied the land for 16 years. He stated that he had wanted to contact the plaintiff and make legal arrangements because he was not satisfied, living on the allotment without them, but did not know where he was.

He maintained in evidence that although he has shifted the location of his house he is still living within the corner marks put down by the plaintiff. He also stated that, unknown to the plaintiff, other occupiers of the allotment had, before he moved onto his part, used the bole of the mango tree as a place to burn their rubbish. This he said had made him angry when he moved onto the land because it had weakened the tree, and it was dead when it fell during the hurricane. He said he had not lodged an application for the land because it had not been registered to the plaintiff.

Another occupier, Pepe Fasi, gave evidence, and stated that he had lived on the land for 25 years now, since 1975. He stated that the plaintiff had approached him and asked for $200 for his travel, and in return for giving that he was to have for his son the part of the allotment that he now occupies. He said the agreement was that he and his family would look after that part as if it were theirs, and that he had understood that when the plaintiff's son came of age the plaintiff was going to return and do something about the arrangements they had made. After that it became unclear because the plaintiff took no action.

THE SUBMISSIONS

Both counsel made admirable submissions. For the plaintiff, Mr Hola relied primarily on Ss 6,12 & 13 of the Land Act cap 132. He referred the Court to a passage in Kaufusi & 'Uluilakepa v Kaufusi & Ors, unreported, CA 3/98, a judgment of the Court of Appeal delivered on 7 August 1998 which is as follows:

Of course, any attempt to bind Viliami Kaufusi to a voluntary arrangement with his father [that he would surrender his right to inherit his father's allotment so that another son could inherit] would encounter the difficulty that s 6 of the Land Act makes null and void a disposition "which purports to effect a voluntary conveyance [or] an out-and-out sale" of an allotment.

The court went on to point out that s 82(c) of the Act gave the inheritance to Viliami as the eldest son, and that s 54 requires an allotment surrendered by his father during his lifetime, to devolve immediately on him.

The significance of this is that the law prevented Viliami Kaufusi, and prevents the plaintiff, from trading away his right to inherit.

The force of s 6 emerges in the passage just cited. Mr Hola relied also on s 12, which provides conviction and penalty for selling or attempting to sell land., then s 13 is as follows:

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 a part thereof other than in the manner prescribed by this Act or as approved in writing by the Minister shall be liable on conviction to a fine not exceeding $200 or to imprisonment for any period not exceeding 12 months or both.

For the defendant, Mr Muller raised first the defence of estoppel, as enacted s 103 of the Evidence Act cap 15. He submitted that the plaintiff's own words and actions prevent him from succeeding in his claim. It was the plaintiff, he argued, who had invited the defendant onto the land and made the promise that he now says was illegal. Then Mr Muller pointed out that the plaintiff admits that the agreements were reached and while he relies on the Land Act as a sword he is relying on the illegality of his own actions as a shield. He submitted that in the Kaufusi case, the claimant Viliami was not raising the Land Act to undo what he had agreed, but was denying that he had agreed to do something which the Court held was in any case prevented by the Act.

The particular part of s 103 of the Evidence Act, cap 15, that I find relevant to the submission is s 103 (3). It is as follows:

(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 of facts, and that it was a true 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.

FINDINGS

These are my findings of the essential facts. It is clear that before departing in 1978 the plaintiff raised money for his family's journey by offering to people the right to occupy parts of his father's allotment. I find that this included a promise to have a part of the allotment registered in the name of the defendant for his son to inherit. Clearly too, his father and his own heir agreed with this, and both joined together with him in writing a letter to the police about it. They asked the police to protect the defendant and the others like him including the other witness Pepe Fasi as occupants of the allotment, until the plaintiff and his son came back from America and completed the legal work for the lease agreement with the church. To me all of this indicates, and I so hold, that the plaintiff for himself and his father so long as he was the landholder, undertook to complete the agreements with the defendant and the others, and surrender at that future time parts of the allotment permanently to those people, including the defendant. The plaintiff's son who clearly at that time was a minor, for what it was worth consented. I accept and hold that, in return for the $200 payment from each, the plaintiff told the defendant and Pepe Fasi that he would surrender to them for their sons, i.e. their heirs, the, parts of the allotment that he pointed out to them.

COMMENT

The plaintiff seeks in his statement of claim only eviction of the defendant, and the defendant seeks only continued occupation. There is no claim by the: defendant for a registered interest under the Land Act, cap 132. However, the fundamental principles of registration under that Act have been raised, and a comment is necessary. Similar issues were raised recently, in ‘Ameleki v Nai Ors, unreported, L228/99, judgment 29 May 2000.

It needs to be emphasised that the underlying object of the Land Act is to provide, on an even-handed basis, land for individual Tongan subjects. All the land of the Kingdom is the property of the Crown. Those are the very words of s 3 of the Act. A holder, whether of an hereditary estate or of an allotment, has no more than a life interest (s 4). Any attempt to convey, sell or bequeath land is null and void (s 6). Every male Tongan subject by birth who applies on the prescribed form to the Minister is of right entitled to certain areas of land (SS 7 & 43) but cannot hold more than one allotment of the same character (Ss 48 & 84). The Minister of Lands is the representative of the Crown in all matters concerning the land of the Kingdom, and those are the very words of s 19(1).

Under s 55, subjects may not even exchange allotments without the recommendation of the Minister and the unfettered discretionary approval of the cabinet. Where minors are involved, cabinet's approval is restricted to cases where it is satisfied that the exchange is for the benefit of the minor.

What is paramount is the interaction of a male Tongan subject over the age of 16 who has applied on the prescribed form and the Minister of Lands. Where the land is on a hereditary estate, as became apparent in 'Ameleki, the rights and the role of an hereditary estate holder in the process of allocating land are limited. Once land is lawfully allocated, then a hereditary estate holder has even less influence, unless an allotment reverts to him. This happens e.g. upon surrender under s 54 or s 73(2) or s 86, or upon ejectment under s 71, or upon lack of a successor under s 83 or s 87. Upon reversion however it is still the Minister who once again allocates the allotment. The allotments on estates otherwise devolve in a clearly defined pattern that is set out in Part IV Division VII of the Act, Ss 80 - 88. The only persons involved in succession to allocated allotments are the family of the landholder and the Minister. The Minister is bound by the Act and his actions are subject to the approval of the cabinet.

It is possible for the heir and the Minister and the cabinet all to agree to some arrangement for a named person to be granted an allotment, and indeed the Court hears evidence from time to time of a scheme whereby this is said to occur. Two government valuers gave evidence of this practice in Loto'a Havea U' v Kingdom of Tonga, unreported, C1570/98, judgment 31 March 2000, and in the present case it was mentioned in evidence yet again. A standard "gift" or fee for transfer of allotments, said to have been set by the government, was, stated by the plaintiff to be the reason for his demand for $8,000 from the defendant. He said he thought that this is now the law.

There is nothing to prevent the development by government officials of new practices and rules for allocation of allotments to meet the rapidly changing social environment, but it must occur within the framework of the Land Act. What has been described, if it occurs, may be struck down in any particular transaction if it is shown that the Minister has not correctly exercised his statutory authority and discretion to allocate land and/or carried out the obligations imposed on him by the Act -see 'Ameleki (above). The cabinet also is required by the law to act in accordance with principle when approving the actions of the Minister.

Agreements such as those made by the present plaintiff in 1978 are transactions that are not provided for in the Land Act. They can have no effect in land law. They cannot be enforced against the plaintiff under the Act. There can be no forcing of the hand of the Minister or cabinet by either party. There is no statutory right or obligation of surrender by the plaintiff except under Ss 54, 84 & 85, and the latter two do not apply here. Under s 54 the plaintiff has had the right to surrender any part of the allotment since the time that he became the registered holder (on 12 March 1997). However, if he does surrender, that part must immediately devolve upon his heir, or revert to the estate holder. The Land Act gives no right of registration to the defendant and the plaintiff's promise, so far as the Act is concerned, is worthless.

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. The legal issue arising is whether the promise to surrender to 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. The defendant may now wish to raise it.

DECISION

In the result, the plaintiff is the registered holder of the whole allotment, but he made an agreement for the defendant to have sole occupation of a part of it, first himself and then his heir. Then though he had promised to return and complete the legal steps for registration when his own son was of age, he went away for 17 years and left no word of where he was.

What legal steps he 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 made in 1978 is a shield against his claim for eviction of the defendant. This is provided by s 103 of the Evidence Act, cap 15, particularly s 103(3). I find that a reasonable man would think the plaintiff made a representation of fact, i.e. his promise to the defendant and would take his conduct to show that his promise was his true intention and could be carried out. I find that his promise was intended to be acted on in a particular way, i.e. by the defendant occupying permanently his part of the allotment, and that the defendant did move onto the allotment intending to occupy it permanently, with that belief. I find that to do so was to the defendant's damage. In particular for 16 years he made no other place his home and has continued to live there while these proceedings awaited hearing. Also, so far as the evidence reveals, has in that time made no application for any other allotment under the Land Act.

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. He has established no grounds upon which he is entitled to resume occupation of that part occupied by the defendant. His prayer for eviction of the defendant is dismissed.

Costs will follow the event, and are awarded to the defendant. The registrar will tax the amount if not agreed between them.

NUKU'ALOFA: 23 JUNE 2000

JUDGE