Manu v Tauheluhelu [2002] TOLC 2; L 0201 1999 (14 May 2002)

IN THE LAND COURT OF TONGA
NUKU'ALOFA REGISTRY

NO.L.201/99

BETWEEN:

VILIAMI TAUELI FALEKAVA MANU
Plaintiff

AND:

1. SALOME TAUHELUHELU
2. 'IPOLITO TAUHELUHELU
Defendants

HON. MINISTER OF LANDS
Third Party

BEFORE THE HON MR JUSTICE FORD

Assessor: Mr George Blake.

Counsel: Mr Tu'utafaiva for the plaintiff, Miss Tonga for the first and second defendants
and Mr Kefu for the third party (abiding the decision of the court).

Dates of hearing: 13, 14, 17 September, 15 November and 6 December 2001.
Dates of Chambers hearings: 20 February and 22 March 2002.
Dates of submissions: 11 January, 1 February and 22 March 2002.
Dates fixed for additional submissions: 5 and 30 April 2002.
Date of judgment: 14 May 2002.

JUDGMENT

In the late 1970s the second defendant 'Ipolito Tauheluhelu (for ease of reference, I shall refer to him throughout this judgment as "'Ipolito") built a substantial house on an allotment situated at Tupoulahi road, Kolofo'ou. It transpires that approximately half of the house lies within the boundary of the plaintiff's allotment. The plaintiff seeks an order evicting the first defendant, 'Ipolito's 84 year-old mother, Salome, from the house and a further order requiring 'Ipolito to remove the building altogether from the plaintiff's property. The proceedings have been vigorously defended. How the situation complained of came about is a convoluted story. The complications continued to unfold even after the conclusion of the hearing.

The plaintiff took title to his allotment on 26 January 1995. His mother, Lesieli Manu, told the court that originally his api was part of a much larger allotment comprising 2 roods 16.9 perches at the corner of Mateialona and Tupoulahi roads in the village of Kolofo'ou. The allotment was owned by her father, Siosaia Kavaliku.

In March 1960 Siosaia transferred the whole of the land to his eldest son, Sione. Both Siosaia and Sione are now deceased but Lesieli told the court that her father had always wanted her to have some of the land and she recalled that in about 1974 he and her brother Sione took her and her husband along to the northern portion of the allotment and Siosaia pointed out the boundaries of the 36 perches which he had "earmarked" for her and her family.

Lesieli said that the understanding between them at that point in time was that in due course the 36 perches that had been identified would be given to her and her children. Under the provisions of the Land Act Lesieli could never be granted the property in her own name and so it would have to be surrendered in favour of one of her sons. Lesieli and her husband proceeded to build a 1 bedroom fale on the land and they then lived on the property until 1976 when she was transferred in her teaching job to Ha'apai. Her father at that stage had passed away. When the family moved to Ha'apai they rented out the fale at Kolofo'ou.

It was about this time that 'Ipolito arrived on the scene. He told the court that he was living in New Zealand and he was contacted by relatives to see if Sione (Lesieli's brother) and his wife, Mele'ana, could come and stay with them. Mele'ana and 'Ipolito were first cousins. 'Ipolito's mother, the first defendant Salome, was Mele'ana's aunt.

'Ipolito told the court that Sione and Mele'ana stayed with them in New Zealand for some three months. They had travelled to New Zealand primarily to try and raise money to build extensions onto their home at Kolofo'ou. Mele'ana worked while they were in New Zealand but the couple paid no board or rent to 'Ipolito during their three-month stay. 'Ipolito described in evidence how he and his two younger brothers worked and collected over $5000 which he gave to Sione to help build the extensions. He said that Sione told him at the time that he had a large allotment in Kolofo'ou and he promised to give him part of the land in return for his kindness in raising the money.

In 1977 'Ipolito came back to Tonga and he went to Kolofo'ou to meet with Sione and Mele'ana. He said that they were happy to see him and Sione pointed out the area of land which he had promised to give him. 'Ipolito said that Sione explained how the area at the north end of the allotment where Lesieli and her family had their 1 bedroom fale and the area at the southern end where he and Mele'ana lived would be subdivided into two allotments of 30 perches each and the left over, which was approximately the middle portion of the allotment, would be given to 'Ipolito.

There was a suggestion later in his evidence that the proposal was for one of the 30 perch allotments to go to Lesieli's family and the other to 'Ipolito with the balance of the land being held by Sione. Either way, I am satisfied that Sione did make a promise to give 'Ipolito an area of land of not less than 30 perches on which he could build a home. Unfortunately, however, as so often is the case, the agreement was never recorded in writing.

After a few weeks, 'Ipolito was ready to build his house and he set about planning for its construction. He told the court that he wanted Sione to first register the area of land in his name before he started building but Sione told him that the house would have to be built before registration took place. 'Ipolito said it was agreed between them that upon completion of the house they would both go to the Lands and Survey Department and Sione would hand over a letter of surrender of the allotment, thus opening the way for the land to eventually be registered in 'Ipolito's name.

'Ipolito said that he employed a carpenter and some labourers and he proceeded to build the 32' x 24' house at a cost in excess of $10,000. Building work commenced in 1978 and the house was completed in 1979. 'Ipolito described how, after the building was completed, he tried on numerous occasions to talk to Sione about registering the land in his name but Sione's response to him was to be patient and wait until it was convenient and then he would attend to registration.

It is clear from the evidence that by the time the house was completed, or within a relatively short period thereafter, the relationship between the families had become strained and Sione was having second thoughts about his promise to give the land to 'Ipolito. There were probably several reasons for the change of heart. 'Ipolito's wife and children had moved into the house along with his mother, his sisters and brothers and there seemed to be friction between them and Sione's wife, Mele'ana. At one stage, Mele'ana appeared in court on a charge of assaulting 'Ipolito's wife. The situation was probably not helped by 'Ipolito's absence. He apparently spent much of his time working up in Vava'u.

Another factor was that in 1978 Lesieli's family had arrived back from Ha'apai and Lesieli told the court that she was very upset to find that 'Ipolito had been allowed to build his house so close to her fale. I am satisfied that she would have made her thoughts on the matter known to her brother and her reaction would have undoubtedly been another reason why Sione was rapidly going cold on his promise to transfer the land to 'Ipolito.

'Ipolito said in evidence that at one stage Sione even suggested that they should lease out the house he had build to a palangi man and 'Ipolito's family should move in and live with him and Mele'ana. It is likely that Sione would have been under considerable pressure to try and sort the problem out.

About 9 or 10 months after the completion date, Sione issued court proceedings in the Land Court against 'Ipolito to try and have his family removed from the property. Unfortunately, the court file relating to the case cannot now be located but the action was settled and a formal consent order was made. 'Ipolito said, in evidence which I accept, that Sione had taken the court action to appease his wife Mele'ana. The judge on that occasion stated that even though there was no written contract between 'Ipolito and Sione, the verbal agreement for 'Ipolito to live on the land was reflected in the work he had carried out in constructing the dwellinghouse. The judge also told 'Ipolito and his family to try and keep to where they lived on the allotment and he noted that it would be up to the Minister of Lands to determine what was to happen to the piece of land.

In 1980 there was another court case between 'Ipolito and Sione and once again the court file has simply disappeared. The only record of the case which was able to be located was a brief judgment issued on 31 October 1980 by Hill J. in the Land Court. On that occasion 'Ipolito was the plaintiff and Sione the defendant. When asked about the case in cross-examination, 'Ipolito explained that the reason he took the court action was because his family felt like prisoners as Mele'ana "nagged at them" all the time. It is not clear from the judgment what the relief was that 'Ipolito was seeking and 'Ipolito was not asked about it at the present hearing. The judgment reads as follows:

"There has been a previous action Land Case 8/79 in connection with this matter. That case was settled by consent order. Unfortunately it has turned out that the consent order was not sufficiently precise for the parties who are still quarrelling. And therefore although the plaintiff is not entitled to claim a lease because that would be going behind the consent order he is entitled to have the exact area of the house which he inhabits defined. I have visited the land again today and have defined on the ground the curtilage of the house. That is the land which in the circumstances is so necessary for the inhabiting of the house that it must be considered part of the house. It is that area as marked on the ground which constitutes "the house" within the meaning of the consent order. It is that area that the plaintiff in this action has the licence to occupy. Now the question arises whether this falls within any and if so what sections of the Land Act. I do not think my decision affects the boundaries of the defendant's allotment. They remain the same as they have always been. The only section I think that it might involve is section 24 because I think it is caught by the words "in regard to any other matter concerning his land". Therefore it seems to me that if the Minister of Lands wishes he may direct a survey but he is not bound to do so."

It is most unfortunate that the consent order referred to in the judgment cannot now be located.

'Ipolito said that when the judge visited his property in the course of that case and marked the ground around his house determining the inhabited area, he told 'Ipolito to put a fence around the marks which he had made. 'Ipolito duly did that although the fence is no longer standing. From the judgment, it would appear that under the consent order 'Ipolito had been given a licence to occupy the area defined by the judge as "the curtilage of the house". The judge took the opportunity to remind the Minister that he could direct that a survey be carried out of the area if he so wished.

The terms of the licence to occupy are not clear from the judgment. 'Ipolito, who I generally found to be a credible witness, said that the consent order was silent on the duration of the licence to occupy. He was not cross-examined on that evidence.

There was a letter dated 1 November 1993 produced in evidence written by Sione to 'Ipolito which indicated that the licence to occupy was to expire when Lesieli and her husband returned to Tongatapu but 'Ipolito denied ever receiving that letter and I am not satisfied on the evidence that he did in fact receive it. More importantly, I am not persuaded that the licence to occupy was restricted to the point in time when Lesieli and her husband returned to Tongatapu. If the licence to occupy was to be of such a transitory nature then it is likely, in my view, that Hill J. would have made specific reference in his judgment to the event which would bring it to an end. It would also be surprising for the court to suggest to the Minister that he might wish to go to the trouble of having a survey carried out if the licence was only of a very temporary nature as suggested.

Lesieli said in evidence that the outcome of the court case had been that Sione had agreed for 'Ipolito to remain on the property until his children had finished schooling. Lesieli had not seen the court order, however. She was relaying only what she had been told by Sione and given her anger over the fact that Sione had allowed 'Ipolito to build his home so close to her fale in the first place, I suspect that he would have been very reluctant indeed to have to break the news to her that the outcome of the court case was an agreement allowing 'Ipolito to occupy the property for an indefinite period.

Given the conflict in the evidence and the fact that 'Ipolito was not cross-examined on his statement given on oath that the agreement was silent as to its duration, the plaintiff has not persuaded me, on the balance of probabilities, that the licence to occupy was restricted as to its term in any way.

The present situation with the overall property is that after Mele'ana's death in the early 1980s Sione remarried Lataipau. Lataipau is still alive. She holds a widow's interest in the estate and she continues to reside in the house at the southern end of the original allotment.

Before he died in 1996, Sione formally surrendered the 36 perch api at the northern end of the allotment to Lesieli's son, Viliami, who is the plaintiff.

The house that 'Ipolito built in about the middle of the original allotment is apparently now mainly occupied by his elderly mother, Salome and some of his children and a sick brother. Salome, who is in her mid 80s, gave evidence in the case as did 'Eseta who is the 92 year-old mother of Sione and Lesieli.

Langi v Lafo'ou (unreported) L.1379/99 (judgment dated 11 June 2001) sets out the legal principles applicable to a case of this nature where one of the parties is the registered holder of a deed of grant over an allotment:

"The legal position, which has been stated many times by this Court, is that once a deed of grant is registered in accordance with the Land Act then it is final unless registration has come about as result of an error of law (i.e. it is contrary to the Act), or as a result of fraud, mistake, breach of the principles of natural justice or of a promise made by the Minister."

After the hearing had concluded and submissions had been presented in the present case, the court detected what appeared to be an anomaly in the evidence. Lesieli had told the court the dates of birth of her four children. She had given the plaintiff's date of birth as 12 February 1979 but if that date was correct then it would mean that he would have been only 15 years of age when the deed of grant was registered in his name on 26 January 1995 and he would have had to have made his application for the grant sometime before then. Under the Land Act a male Tongan must have reached the age of 16 before he is entitled to the grant of an allotment.

Faced with this new development which, as it transpired, had not been noted by either counsel, the court called for production of the plaintiff's birth certificate. The certificate confirmed that the evidence Lesieli had given had been correct. Counsel for the parties, including the Minister of Lands, was then given the opportunity to present further submissions but, significantly, only counsel for the defendants responded. Miss Tonga submitted that the grant made by the Minister to the plaintiff was unlawful and she, therefore, sought an order setting it aside.

In the circumstances, I have no option but to accept that submission. The legal position is clear. The plaintiff's registration is contrary to the Land Act. Unfortunately, the court has not had the benefit of any submissions or evidence from the plaintiff or from the Minister's office explaining how it was that the deed of grant could have been registered in the name of a 15 year-old but a copy of this judgment will be forwarded to the Minister and the court would hope that the matter will be appropriately investigated.

And so the outcome of this rather sorry saga is that the plaintiff's claim must fail. Accordingly, I now make an order setting aside the plaintiff's registration as grantee of the allotment in question. In accordance with the application made by the defendants, I also make an order, pursuant to section 26 of the Land Act, requiring the Minister to cause a resurvey to be carried out of the allotment so that the boundary lines do not interfere with the area designated in the Land Court order dated 31 October 1980 which defined the curtilage of the second defendant's dwellinghouse. If there is any difficulty in now identifying the markings made by Justice Hill then the matter should be referred back to this court for determination.

My finding is that the settlement agreement reached between 'Ipolito and Sione which is embodied in what Hill J. referred to in his 1980 judgment as the "licence to occupy" was an agreement for an indefinite period of time. As such, it remains valid and in force for so long as the licensee remains in occupation or until his death.

The defendants have succeeded in the action and they are entitled to costs against the plaintiff to be agreed or taxed. Counsel for the Minister of Lands, as third party, took no active part in the proceedings and agreed to abide the decision of the court.

NUKU'ALOFA: 14^th May, 2002

JUDGE