Sila v Ngahe.rtf [2000] TOLC 4; L 1087 1998 (31 March 2000)

IN THE LAND COURT OF TONGA
LAND JURISDICTION
NUKU'ALOFA REGISTRY

L.NO. 1087/98

BETWEEN

SISIFA SILA
Plaintiff

AND

1. SOANE NGAHE
2. NITA NGAHE
3. MINISTER OF LANDS
Defendants.

AND

PENISIMANI VETE
Third Party

BEFORE HIS HONOUR JUSTICE FINNIGAN, AND
THE HONOURABLE LASIKE (ASSESSOR)

Counsel
Mrs Vaihu for plaintiff
Mr Fakahua for defendant,
Mr Kaufusi for third party.

Dates of Hearing: 25, 26, 29 November 1999.
[Submissions received 6 December 1999].
Date of Judgement: 31 March 2000

JUDGMENT OF FINNIGAN

This is a claim by a registered leaseholder for possession of leased land. The defendants occupy the land, or part of it. The third party is the landholder. The Minister of Lands has not appeared, and abides the outcome.

The Court heard the case and took a view of the disputed property in November 1999, then received submissions in December, but was unable to deliver judgment until now because of pressure of other hearings. The matter is not difficult, as the submissions confirm.

Briefly, the defendants have occupied some land with the consent of the landholder for over 16 years. They have built a house there. They have not paid rent. About 4 years ago the husband went to Hawaii with two of their children to earn some money for the education of the children and for their future home. He did not return for this hearing. The wife has remained on the disputed land with 8 of their children. The third party says they are not welcome there, and seems to have made this plain enough. In 1995 the mother of the plaintiff, a distant relative, came and asked for some land for the plaintiff, and the third party gave her a 20-year lease. This lease was actioned in accordance with the Land Act and after cabinet approval in October 1995 it was registered in July 1996. The plaintiff and the third party have asked the defendant wife to move from the land that the plaintiff has leased but she has refused. She says she has lived there so long and has asked so often and made so many improvements that she now has rights. It seems that originally all she had to do to remain there was move her house a little and there was still some land she could have occupied, but she did not.

The annual rental payable by the plaintiff under the lease is $50 per year. The plaintiff has not paid any rent either, because she has waited for the settlement of this dispute. There being no settlement, she commenced these proceedings.

Her claim is simple and direct. She says she has a valid lease, made properly in accordance with the Land Act, and thus has a right over the land contained in the lease, over all other would-be occupiers. The defendants respond that the third party had actually in the past surrendered to them the land they occupy, and that the onus was on the third party to advise the Minister that the land was not available for lease. They claim that the Minister was led into a mistake by the third party. Citing authorities, counsel claims the third party is estopped from evicting them, because of their long occupation. There are related claims of fraud and misrepresentation.

Suffice it to say that the law governing the plaintiffs claim is clear. She has the right to occupy the land in terms of the lease, i.e. for residential purposes for 20 years from 29 July 1996, so long as she pays $50 per year. This right is given by the Land Act, which is a code, but it may be taken away if there has been some breach of the law or some breach of a promise or some breach of natural justice. The evidence has shown no breach of the law, no promise or surrender by the third party and no breach of natural justice. The evidence shows that the defendants gave to the third party gifts, of timber and a kitchen sink and $100 misinale, probably in the 1980's but little else if any thing. The evidence of the third party & his wife is that the third party did not invite the defendants onto the land, it was the wife. It shows that rather than let the defendants believe he would surrender the land, he always made it clear that they were to go. At law the third party was entitled to lease the land under the Act and the work done in the Minister's office showed there was no impediment to that. The third party's permission for the defendants to occupy the land which is covered by the lease has been actively withdrawn, and they must now let the plaintiff enter on that part of the land. If there is some other land which the landholder is prepared to let them occupy, that is a matter for him.

In their statement of defence, the defendants made counterclaims for orders declaring their right to occupy the land covered by the lease, and preventing the plaintiff from entering on the land. As a direct corollary of the findings above, those counterclaims are dismissed.

Judgment is entered for the plaintiff, with costs. The Court directs that the defendants must vacate within 42 days of this judgment all the land which is covered by the lease and allow the plaintiff free access to that land. Costs of the plaintiff are to be paid by the defendants, and are to be agreed or taxed. The third party was joined by application, and the Court refused his application to be dismissed from the action. The first and second defendants must pay also the costs of the third party, which are to be agreed or taxed.

NUKU'ALOFA; 31 March 2000

JUDGE