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Land Court of Tonga |
IN THE LAND COURT OF TONGA
CIVIL JURISDICTION
NUKU'ALOFA REGISTRY
LA 23 of 2010
BETWEEN:
SIMAILEVEA LI
Plaintiff
previously of Navutoka now residing in Australia
AND:
SIONE FINEFEUIAKI
Defendant
of Navutoka Tonga
JUDGMENT OF JUSTICE CATO
Mr Laki Niu for the plaintiff
Mrs Petunia Tupou for the defendant
[1] The plaintiff claimed possession of land at Navutoka which became known as Lots 2 and 3 on a taxation allotment situated in Block 80/97 Navutoka of which the plaintiff is the registered holder. The plaintiff had intended to subdivide in about 2001 because he said he needed finance for his business. The area of the total allotment is 8 acres one rood and the allotment is situated on the estate of Tungi at part of Navutoka in Tongatapu. It is situated on the beach road on the waterfront at the southern end of the village of Navutoka. Navutoka is a pleasant coastal village adjacent to the upper reaches of the lagoon in the east of the island of Tongatapu. The area which the defendant is in possession of and upon which a very substantial house has been constructed is about 120 perches. It occupies 2 of 5 allotments that border the coast. The house is built over both lots.
[2] The plaintiff, in his statement of claim, sought to evict and secure possession of the land on which the defendant had built a substantial house. He contended that, essentially, the defendant had built on the wrong land and had occupied an area double the size he had agreed to sell to him. He offered to refund the sum paid by the defendant towards the purchase. He claimed that, in any event, he had not been paid the contract price fully. He also claimed that the defendant wrongfully used other areas of the allotment for commercial plantation of crops and claimed $80,000 should be paid for the wrongful use of this land as rental or mesne profits.
[3] The plaintiff since about 1984 had been living in Australia and for some years had resided in Melbourne. He claimed that before the defendant entered into contractual relations with him he had sold three of the five lots to others, the first being a Mr Finau Tavake for $A 15,000 in 2001 and two other lots to a Mr Sione Pousini for $A30, 000 also in 2001, those being, the plaintiff said, immediately adjacent to the land of Finau Tavake. Mr Tavake did not give evidence but Mr Pousini did in the case for the plaintiff.
[4] Confusion emerged at trial because the lot numbers referred to by the plaintiff, for which amendment of the statement of claim was sought, did not correspond with the lot numbers on the official subdivision plan submitted to the Minister. The numbering on the official plan corresponds with a simple plan drawn up by a Mr Sione Uele who gave evidence at the trial. Mr Uele was employed by the Minster of Lands as a senior officer and he had numbered the lots as 1-5 with 5 being the northernmost lot closest to Navutoka with Mr Tavake taking lot 1 being the southernmost; whereas, in the amendments to the statement of claim, the plaintiff referred to this as lot 5. The statement of claim was amended at trial to reflect the numbering the plaintiff had used before Mr Uele had drafted his plan of the allotments on or about the 1st May 2002. Mr Uele's plan had formed the basis for later surrenders and registration. I am not satisfied, however, on all the evidence I heard that the plaintiff had before March 2002, ever referred to the parcels of land he sold by lot number for reasons I mention later in para 41.
[5] In his statement of claim as amended, the plaintiff alleged that he had agreed to sell lot 2 (that is Lot 4 on the Uele plan) to the defendant which, like the others, contained 60 perches. In evidence, he said that he had intended to give to one of his two adopted sons the remaining area of land known as lot five on the Uele plan. He said he did not have any heir. The plaintiff claimed that he had agreed to sell lot 2 to the defendant in about January 2002 for $A 15,000.00. Agreement was reached in a single telephone call that the plaintiff said was made to him by the defendant who was living in Honolulu. The defendant also came from the village of Navutoka originally. Not only did the evidence reveal that the plaintiff and the defendant had known each other having lived as neighbours but they had been at school together. The defendant, now 73 years of age, is about ten years the plaintiff's senior.
[6] The defendant is also closely related to Finau Tavake who had earlier purchased one of the lots. Mr Pousini gave evidence that he also had met the defendant in Navutoka where a wedding celebration had been held, and it would seem he was distantly related to him by marriage. There is evidence also that Mr Pousini is related to the plaintiff.
[7] The defendant said that he had lived in Honolulu for many years and he had built up a contracting business. He had prospered and owned two properties in the United States. The house he built on the land in Navutoka had cost him about $1 million pa'anga he said to construct. He also he said had other interests in Tonga including plantations with the land being acquired from estate holders at little or no cost. He leased other land on which he farmed a sizable number of cattle. The lease would seem to be one that could be described as very reasonable. He was a man who by nature appeared very industrious spending time in Honolulu on business and farming in Tonga. He visited Tonga regularly. I considered he was shrewd, careful with money, and was the kind of person who could be expected to drive and secure an advantageous bargain, if he could.
[8] The plaintiff gave evidence he was presently employed as a lorry driver in Melbourne where he had lived for some years. He said that between the years 2001 and 2003 he had owned a small delivery business involving one vehicle. He had ceased to operate this business in 2003. When asked, he admitted that he had decided to subdivide the allotment in order to obtain finance for his business. After he ceased to operate the business in 2003, he was an employed lorry driver. He gave evidence that the last time he had been in Tonga before commencing proceedings in October 2010 was in May 2002, which, as the evidence unfolded, involved a critical meeting which he attended with Mr Pousini, Mr Tavake, and the defendant's son, Samuela Finefeuiaki, in the absence of the defendant who was in Hawaii. The plaintiff gave evidence that, after the meeting in May 2002, he did not return to Tonga until October 2010, when he gave instructions to his lawyer to commence these proceedings. He said he had only returned since for the trial. During the trial, evidence emerged, however, which cast very real doubt about this.
[9] This meeting was also attended by Mr Sione Uele. He was closely involved in the subdivision particularly on 1st May 2002, when, in the presence of the plaintiff, Mr Finau Tavake, Mr Pousini and the defendant's son, Mr Samuela Finefeuiaki, he drafted a letter of surrender for the plaintiff to sign. The allocations by the plaintiff, which as I have said were evidenced in a plan prepared by Mr Uele, were made after Mr Pousini and the plaintiff had complained to the Minister of Lands in early March 2002 that the defendant had cleared land that was intended for Mr Pousini. This letter, which was signed by the plaintiff and sent to the Minister of Lands, was never annexed as a disclosure in a statement of the plaintiff which was an exhibit, whereas other relevant documents were. The letter of surrender is signed by all those allocated portions of land by the plaintiff, as well as the plaintiff.
[10] The defendant and his son, in the plaintiff's surrender letter, were allocated Lots 2 and 3 ( 3 and 4 in the Plaintiff's amended statement of claim) whereas the Pousini's were allocated and agreed to take lots 4 and 5 those being the lots closest to Navutoka which were described as Lots 1 and 2 in the statement of claim. The reason why Samuela was allocated a lot was that under Tongan law the defendant was not entitled to take two lots and this was explained to Samuela by Mr Uese at the meeting. It would seem for the same reason the Pousini land is also divided so that land was surrendered to the witness Sione T Pousini and the other to his son, Sione B Pousini.
[11] Mr Pousini gave evidence that he lived in Sydney. He said that he came to Tonga frequently. Not only had he acquired the two lots referred to adjacent to Navatoka, but in 2010, he acquired more land from the plaintiff. This was at the time the plaintiff had surrendered further land in the allotment to others. These surrenders are recorded in a letter dated 7th October 2010. This was very shortly before the plaintiff commenced these proceedings. The surrender of the land, in the plaintiff's letter of the 1st May 2002, was, however, deferred by Cabinet because a relative of the plaintiff, Lesieli Kavaliku, objected to it on the basis that the plaintiff had entered into arrangements with her and others to give land in the allotment to her. The plaintiff was advised of this by Mr Uele on the 9th January 2003. On the 15th September 2003, the plaintiff wrote to the Minister asserting that he would resolve the issue with the objector. He asked the Minister to allow the surrender to the Pousinis. The Minister approved the surrender to the Pousinis on the 3rd March 2004. In a further letter of surrender dated 24th June 2005, the plaintiff surrendered other land to Lesieli Kaviliku, and lot 1 (known as 5 in his amended statement of claim) to Finau Tavake. No surrender, however, was applied for the defendant or his son. In or about June 2002, the defendant said he commenced construction of the house which took he said about 3 years to complete. There is no evidence that he was ever informed that the surrender had been deferred. I accept that the first he knew of any opposition to his construction and that the surrender had not proceeded was when proceedings were commenced.
[12] I gained the impression that Mr Pousini was much more closely interested in the outcome of these proceedings than had been apparent when the case started. He admitted that he would be interested in acquiring the land on which the defendant had built the house if the land became available. He also admitted that he had assisted the plaintiff in funding the litigation.
[13] The plaintiff claimed that the defendant had proceeded to clear land that he had sold to Mr Pousini without his permission and that he had heard about this from relatives he had in Navutoka in early 2002. Mr Pousini also claimed that this was so. He had visited Navutoka and seen this. The Plaintiff said that he had telephoned the defendant and when he had told him that he was not to proceed building on the land he had been threatened with being killed if he returned to Tonga. The defendant denied any conversation with the plaintiff of this kind, or indeed at all.
[14] The plaintiff said he did not speak with the plaintiff before issuing the claim in October 2010. He said he was too frightened to take any further action. He said that he did not know either that the defendant had proceeded to complete the construction until after it had been completed. Aside from fear of the defendant, the plaintiff said that he had been unable to contact him on the telephone.
[15] The plaintiff also alleged that the defendant had not paid him for the land he had purchased which he maintained he had sold for $15,000.00. His wife had kept a note of the payments which was admitted in evidence by consent. His wife was not available to give evidence he said because of ill health. The note records that the defendant paid the following sums;
| 22nd January 2002: | $A 1873.00 |
| 1st February, 2002: | $A 2091.85 |
| 29th March 2002: | $A 1,998.13 |
| 26th April, 2002: | $A 1961.72 |
| 10th May, 2002: | $A 2,349.49 |
| 7th June, 2002: | $A 1684.00 |
[16] There had been a further payment made on the 2nd May 02 of $300.00, making a total of $A12, 258.19. The $300.00 payment was made the defendant and his son Samuela said as a consequence of a request made by the plaintiff after the 1st May meeting for assistance with a funeral expense. Although the plaintiff questioned this payment suggesting it had been made by somebody else interested in land, I find that it was a payment by the defendant.
[17] The defendant, in his statement of defence, claimed he had paid in full by lump sum, but it was conceded by his counsel Mrs Tupou at trial that he had not. The defendant, in evidence even so, continued to maintain he thought he had paid in a lump sum. Given that the payments were made over ten years ago, and the defendant's age, 73, I consider that this to be a failure of recall rather than any deliberate attempt to mislead.
[18] The defendant maintained that the plaintiff had telephoned him wanting money and that he had agreed to pay him $A 10,000 for two apis. That was in January 2000. Later, he thought in February, the plaintiff had rung wanting more money and he had sold him a further 2 apis of 30 perches each for a further $A3000.00. The defendant claimed he had informed the plaintiff he wanted to commence building and the plaintiff had said he could build where he wanted. The plaintiff denied, however, selling the defendant any further land or asking him for more money. The plaintiff said he informed the defendant he could only build when he had paid the money. He denied saying he could build anywhere the defendant pleased. Curiously, however, he said that he did not discuss any precise area with the defendant even though in his statement of claim he alleged that he sold the defendant lot 2 or lot 4 on the official subdivision plan. The plaintiff in evidence admitted that he was subdividing in order to assist with his financial position, and I consider that he was probably in need of money when he contacted the defendant as the defendant claimed.
[19] He alleged also that the defendant had in 2003 cleared the rest of the tax allotment and had forbidden his relatives from entering or taking anything from the allotment anymore. He claimed the defendant had threatened to chop off their heads with a bush knife if they came again and they did not.
[20] The defendant said that he had not been advised that anybody held interests in any of the land. In his statement of defence he said he had expected that the plaintiff had surrendered the portion of the land upon which he had built (and equivalent to the four apis or 2 lots) to the estate holder in order for the registration of the same in exchange for the money paid to the plaintiff. He further denied any conversation with the plaintiff whereby the plaintiff had objected to him building or occupying the said land. He said he had not made any demand for further money prior to his action for possession.
[21] As an affirmative defence, he also alleged that in any event, the plaintiff was estopped from bringing the action for possession. A counterclaim was filed repeating the allegations and denials and an order was sought that the plaintiff take immediate steps to register the equivalent of the four apis under the defendant's name to include the land which he currently occupies.
[22] The case took nearly eight days of hearing time. Although the parties had spent years in countries other than Tonga and could be taken to know that issues involving the land could be complex there was no written record evidencing the agreement; nor had either of the parties sought legal advice until proceedings were commenced. Both parties said they trusted each other.
[23] There was a conflict in evidence on almost every major point which I had to resolve. Much of this could have been avoided had the parties committed their agreement to writing. That there was an intention on the part of the plaintiff to sell land and by the defendant to acquire land is clear; what is not so clear were the essential terms of price and the area that the plaintiff intended to sell. Was the contract one that was void for uncertainty? Whilst I cannot redraw the contract if it is so vague as to be uncertain, the modern approach is to try and uphold contracts despite their lack of clarity. (Cheshire and Fifoot, 6th August, 1992, at para 162)
[24] Much of what took place in March 2002 and, indeed earlier between the plaintiff and the defendant is unclear to me. It seems, however, by about the 6th of March 2002, the plaintiff had learned that the defendant had commenced clearing a certain area. Mr Pousini had apparently contacted the plaintiff indicating his concern about this. Mr Pousini had arranged with the plaintiff that in a letter dated the 12th February 2012 addressed to the Minister for Land, the plaintiff would describe the area of land he intended Mr Pousini to have and this was to be accompanied by a plan. The plaintiff gave evidence that though his wife typed the letter the information in it came from Mr Pousini.
[25] A plan was exhibited which the plaintiff said was the plan which he had initialled and was intended to refer to the Pousini lots. It does not, however, refer to any area by number or name. This is to be compared with the plan prepared in or about 1st May 2002 by Mr Uele. The plan alleged to be the plaintiff's, if one accepts the plaintiff's numbering of lots as in his amended statement of claim, records the plaintiff's signature on lots 3 and 4, with lot 5 being the southernmost lot acquired being sold to Mr Tavake. On the Uele plan, the area intended for Pousini would be lots 2 and 3, with Mr Tavake taking Lot 1. I found the different numbering of the lots very confusing, and indeed evidence about the plan said to be the plaintiff's also uncertain.
[26] Further, in the letter to the Minister of the 12th February, 2002, the plaintiff appears to identify the land to be given to Pousini as that adjacent to the village of Navutoka, which is quite different from the area designated by the plaintiff in the plan said to accompany the letter. It is, however consistent with the area that the plaintiff surrendered later to Mr Pousini. Mr Pousini said in evidence that this plan had been prepared by Sione Uele and that he furnished it to the plaintiff together with the information that led to the preparation of the letter to the Minister by the plaintiff of the 12th February. Mr Uele not only gave evidence that no plan was included with the letter of the 12th February from the plaintiff but also said that one was not included with either the plaintiff's letter of complaint to the Minister concerning the defendant's alleged wrongful occupation dated 7th March, 2002, or that of the same date by Mr Pousini to similar effect. These are considered below.
[27] Mr Uele said he had not seen such a plan until much later in 2003 when the letter of the 12th February 2002 was, he said, presented a second time by the plaintiff as a consequence of the complaint by a relative Lesieli Kavaliku on the 13th June, 2002 to the Minister alleging an interest in the allotment. It should be noted that Mr Uele said this letter and plan had been forwarded later in answer to this objection. The identity of its draftsman remained to my mind unresolved. This, I found unsatisfactory. I accept the evidence of Sione Uele, who I found a careful witness with a well documented departmental file, that no plan was produced with the letters of the 12th February on first presentation or in the correspondence of 7th March 2002 and was not in fact received until the following year. The fact it was not included in the correspondence by Mr Pousini or the plaintiff of the 7th March is confirmed by the letter to the plaintiff from Mr Uele of the 12th March 2002 which records this fact. I accept that Mr Uele did not draft the plan which bore the plaintiff's signature and was said to accompany the letter of the 12th February 2002.
[28] The terms of the letter of the 12th February 2002, evidences the plaintiff's intention to sell land closest to Navutoka to Mr Pousini. In that letter, the plaintiff states his intention to give Mr Pousini two lots and says;
"The position of these 2 lots is that they be surveyed off so that they each have a road frontage to the beach road as shown in the little diagram which is enclosed with this letter which shows that they both front on to the beach road and adjoin to the village of Navutoka."
[29] In correspondence of the 7th March with the Minister, the plaintiff and Mr Pousini both state that Mr Pousini had acquired lots 3 and 4 with Mr Pousini's purporting to include 'the little draft subdivision" plan. The plaintiff further requested the Minister to stop the defendant taking any steps to clear lots 3 and 4 (2 an 3 on the official plan). The Minister, on the 12th March 2002, responded that there could be no surrender if there was a dispute about land to be registered. He further informed the plaintiff it was his responsibility to advise the defendant not to proceed further and it was suggested this could be affected through a lawyer. This letter was copied to the defendant.
[30] The inference I draw from this is that as at the 12th February the intention of the plaintiff and Mr Pousini was that Mr Pousini would take the parcels of land that came to be known as lots 4 and 5 in the official plan but between the 12th February and the 6th and 7th March, 2002, Mr Pousini changed his mind and indicated a preference for the lots which had been cleared. I have not seen any evidence that established that the plaintiff, prior to this, had indeed agreed to sell lots 2 and 3 on the official plan to Mr Pousini. The earliest evidence of this is the letter by the plaintiff addressed to the Minister dated 7th March 2002.
[31] Mr Uele gave evidence that, about this time, he had gone out to the area and had seen that the land had been cleared and that the foundations had been dug. There were no actual foundations. He agreed it was quite clear that someone was going to build there but no construction had been done. He also said that he had taken a copy of the Minister's letter to the defendant and had informed him of the problem and he had said no one was going to stop him.
[32] The defendant, in evidence, denied either being given the letter or the conversation. On this point, I prefer Mr Uele's evidence as more likely. I also, however, consider that after a decade, the defendant had quite possibly forgotten about that meeting or the conversation.
[33] The plaintiff says that he spoke to the defendant and told him not to proceed it seems before his letter to the Minister seeking assistance in answer to questions from Mr Niu, although, in his statement of claim, he appears to suggest it was after the correspondence he telephoned and was threatened. In evidence by Mr Pousini of a meeting he had with the defendant at a social occasion, Mr Pousini in a similar, rather dramatic in court exhibition, claimed the defendant had made similar threats to him. I viewed with scepticism Mr Pousini's description of this meeting. The defendant agreed he had a conversation with Mr Pousini at a family celebration where he said Mr Pousini was drunk. The defendant said, and I accept his evidence, that he did not threaten either witness. I do not believe that the plaintiff did personally contact the defendant, or that he was threatened. I accept the defendant's evidence that the plaintiff did not make any complaint to him.
[34] I also note that in para 13 of the statement of claim, it is alleged that the defendant threatened a relative in similar terms not to venture on the allotment. The witness called by the plaintiff, Paea Fotu, did not however give evidence to this effect, but gave another version of what occurred which did not include any threat of violence at all.
[35] I consider the plaintiff was attempting to portray the defendant as a violent man to justify his inaction. I do not consider he had any good reason for not making his protest clear to the defendant. If he truly believed that the defendant was not entitled to build on that portion of land, had not purchased two lots, the price for two lots was unsatisfactory, or that he required payment in full prior to the defendant commencing construction, he should have clearly advised the defendant or his son of this before signing the surrender. I find that, after the meeting of the 1st May 2002, he did nothing and allowed the defendant to build a substantial home over a period of three years. I do not accept the plaintiff's evidence that he was unable to contact the defendant or that he did not know that construction was proceeding.
[36] The evidence of Mr Uele was educative and much of the documentary evidence he produced from the file I sensed was unknown to either counsel. Some of the documentation he produced I found very helpful. I consider it unsatisfactory that this correspondence was not included in para 26 of plaintiff's statement of evidence dated 12th August 2011 relating to the plaintiff's dealings with Mr Uele and the Minister on or about the 1st May 2002, and subsequently. I consider it likely that he cannot have fully instructed his counsel of the events of May 1st 2012 and after, concerning surrender letters that he signed the content of which I regard as critical.
[37] Having considered all the evidence, including that of Mr Sione Uele, I consider that by the 1st May 2002 the plaintiff had decided that the defendant should get what he wanted (despite Mr Pousini's desire to have that land) and in my view he would not have proceeded in this way had the agreement with the defendant not been for an area of the size that had been cleared equivalent to two lots each of 60 perches. The fact that he gave Mr Pousini the lots closest to Navutoka persuade me that was the area which Mr Pousini originally was to acquire.
[38] I found both Samuela and Mr Uele reliable witnesses. Later, Samuela, I find, informed his father that the surrender would go ahead. As a consequence, the defendant commenced building he said (and I accept) in June 2002, and his son also seems to consider that building commenced about that time. That leads me to believe that the defendant may well have known that there was a difficulty over the cleared area as the evidence of Mr Uele would suggest and did not commence any construction until the way was clear for him to do so. I record that I did not accept the evidence of the plaintiff that he saw pillars and more advanced construction when driving past the allotment on or about the 1st May 2002.
[39] At the time of this meeting, the defendant was overseas. Samuela says he was not asked by his father to attend; he did so at the invitation of others. It was at the invitation of the plaintiff that Mr Uele was asked to draft a surrender letter. Prior to signing the surrender letter the plaintiff told Mr Uele that he would not include the defendant and his son because he had not received any money from them. Samuela said his father had given him the money. The plaintiff said he had not and Uele suggested they both contact the defendant by telephone. The next day, they came back and the plaintiff signed the surrender document. I consider he would not have done so had the defendant been substantially in arrears with the purchase price. Likewise, if the price for two rather than one lot had not been settled, I would have expected him to have discussed with Samuela a higher price before proceeding. He made a request for only $300.00 I find for funeral expenses, and no further request was made for further payment at any time after the 1st May 2002. The plaintiff indicated to Uele that he was agreeable to wait for the money and would sign surrender that day.
[40] By the 1st May, the evidence establishes that the defendant had paid by irregular instalments $7925.17. He was thus short by $2074.83, of the $A10,000 he said was the price agreed upon for the first lot and on his account a further $A3000.00 for the second lot was required. The defendant in fact paid further amounts $A2049.00 on the 10th May 2002 and $A1,684.00 on the 7th June, 2002 suggesting he knew there was some urgency for him to pay. This is consistent with the fact that his son had communicated the outcome of the 1st May 2002, meeting at which moneys owing to the plaintiff was discussed. I accept the defendant's evidence on the point of price namely that he agreed to pay $A 10,000 and a reduced price of $A 3000.00 because the plaintiff was said to be in need of money at the time. I have no doubt that the defendant, as a successful businessman, was well capable of driving a firm bargain and it is likely he did so. The plaintiff denied selling him two lots an assertion I find unlikely as I have said in view of his surrender of two lots in May 2002. There is no other evidence proffered by the plaintiff to counter the assertion of the defendant that the plaintiff rang and offered a further lot for a reduced price of $3000.00 because he was in need of money, other than his denial. I prefer the evidence of the defendant on this point.
[41] The defendant said that the plaintiff had told him he could build where he liked. Whilst I had some doubt initially whether this would be so, the fact that the plaintiff never said in his evidence that he referred to a specific area by lot in his telephone conversation may have encouraged the defendant to think he could build where he wanted. He said he visited and chose an area he liked. This was cleared and it appeared some measuring was effected through Mr Sione Uele. As I have said, I consider the surrender letter of the 1st May 2002, giving the defendant the area he had cleared evidences their earlier agreement that the defendant could have two lots or 4 apis of land totalling 120 perches in that general area. Although not defined clearly by the plaintiff at the time of the agreement, the area was defined by lot and designated by the date of the surrender letter. I consider it was not until March 2002 when Pousini raised with the plaintiff the defendant's clearance of the land that there was any reference to area by lot number. I also prefer the evidence of the defendant on the issue of price.
[42] Although he was questioned at some length on his knowledge of the process of registration under Tongan law, it was plain to me that the defendant did not have a very good knowledge of the requirements of Tongan law. He had not known for example that he was not entitled to have both lots registered to him until the meeting his son had with Mr Uele in May. I have little doubt that when his son informed him that the subdivision process had been resolved that was the green light for him to commence building. The plaintiff must have known when he signed the surrender document that the defendant would go ahead and build.
[43] I also find incredible the plaintiff's evidence that he did not know until after the building had been completed that the defendant had constructed a very significant house. The plaintiff had relatives in Navutoka, and indeed the initial surrender was one disputed by a relative Lesieli Kavaliku and had deferred the surrender process. Further, Mr Pousini was a frequent visitor it seems to Tonga and he would not have missed seeing construction on the land for which he had expressed an interest. Just as the plaintiff claimed to have first learned of the land clearance from relatives and, or Pousini, I have no doubt he would have known of the construction of a very substantial dwelling house (7 bedrooms) on his land and its progress. As at 2005, he still owned a good deal of land in the allotment much of which he later surrendered. I record that I asked Mr Niu whether on the evidence I could draw the inference he must have known that building was going ahead and Mr Niu agreed that I could. I have no hesitation in so finding.
[44] On 29th May, 2002, the Chief Secretary to the Cabinet recorded that the surrender had been deferred in a memorandum No 28. It may be that the Plaintiff was not informed of this until the 9th January 2003, when he was written to by Mr Uele stating that his tax allotment had been subdivided in accordance with his requirement but the Minister of Land has not approved it because of the complaint of Lesieli Kavaliku. Essentially, the objector and others alleged that there had been an agreement with the plaintiff on the way the allotment would be divided. On the 15th September, 2003, the plaintiff responded by requesting the surrender to Mr Pousini to go ahead and leave the rest of the land and he would work the issue out with Lesieli Kavaliku on his return to Tonga. He said of Mr Pousini that his request was being made because;
"Sione Taula Pousini was the one who helped me a lot by paying for my education, in Australia, and maintains my little family, and I did promise him and his son Sione Bradley Pousini that I would give them part of my tax allotment to show my appreciation for their love as I would not be able to repay them in money".
Again he emphasises the areas lot 4 and lot 5 he is surrendering to Mr Pousini.
[45] That request was approved by Cabinet on the 3rd March 2004. On the 23rd June, 2005, the plaintiff wrote to the Minister again. He thanked the Minister for assisting him with the transfer to the Pousini's who he described as his relatives. He said he would come to Tonga and attend to the rest of his family and talk with Lesieli Kavaliku. He said in that letter that he had indeed come for the conference and had reached an understanding with Lesieli Kavaliku. He asked that there be a surrender of land to her, to Finau Tavake, and to two persons named Pua. They were all relatives. That was approved by Cabinet on the 1st December 2005.
[46] This letter states also that he came to Tonga in 2005 for the "conference", which was contrary to his evidence that it was not until 2010 that he came to Tonga after his visit in May 2002, ostensibly because he had been frightened of the defendant. On the 7th October 2010, the plaintiff again wrote to the Minister. Amongst the surrenders he sought were those of lots 10 and 11 to Sione Pousini which may have been leases.
[47] In his correspondence with the Minister, he informed him that he had no heirs. He asked that the surrender be approved. That received approval on the 23rd March 2011. It would seem that, by this date, the plaintiff had probably alienated most of the workable land on the allotment. Evidence had been given that quite an extensive amount of the allotment was swampy land. The statement of claim is dated 25th October 2010 only a few days after the surrender of considerable portion of the allotment and further two leases to Mr Pousini. The plaintiff gave evidence that he had taken the action he did because he wanted to give land to one of his adopted sons. I find it suspicious that he had not made provision to give his adopted son or sons portions of land that were available earlier. More likely is it, I consider, that the plaintiff wanted to secure the land and sell it.
[48] I consider that the defendant is estopped from now attempting to evict the defendant from the land on which the house had been built. He signed a surrender of the relevant lots to the defendant and his son on the 1st May 2002. Knowing the son, who by invitation had attended the meeting, would communicate this fact to his father amounted to a representation that the land would be theirs and that there was now no impediment to his father proceeding with construction which he plainly knew the defendant was looking to commence on the cleared land. He must have known the defendant and his son would rely on this representation, as the green light to commence building. He should have informed the defendant once he had received notice that Cabinet had deferred the surrender, so that, if the defendant continued with construction, it was at his risk. He proceeded with the surrender to Mr Pousini and Mr Tavake but he did not proceed with the surrender to the defendant and his son even after objection had been resolved. He made no further demand for payment. He simply did nothing until he commenced action to evict the defendant.
[49] By taking no action, he effectively allowed the defendant, who I accept was not well versed in Tonga land practice and procedure, to think that nothing was wrong and to continue to construct the house. I have said that I not believe his evidence that he did not know about the construction until after it had been completed. I do not accept any of his evidence about fear or threats either. I have difficulty also, in the light of his surrender of other lots to relatives, in accepting his evidence that he wanted to obtain the defendant's land for his adopted son. In my view, his actions in attempting to now evict the defendant and have his home removed are unconscionable. This falls, in my view, into the category of unconscionable conduct of the kind for which Oliver J granted equitable relief in Taylors Fashions v Liverpool Victoria Trustees Co [1981]1 All ER 897, 920-921, further Andrews v Assurance Society Ltd [1982] 2 NZLR 556, at 569-70; S & E Promotions Pty Ltd v Tobin Brothers (1994) 122 ALR 637. I also refer to cases in Tongan law where Courts have found estoppels, Vai v 'Uliafa [1989] Tonga LR 56; Matavalea v Uata [1989] Tonga LR 101; Motulikiv Naimoa [1990] Tonga LT 1
[50] There is one issue where the plaintiff succeeds in some measure. The plaintiff claims damages or mesne profits for the defendant unlawfully occupying part of the allotment belonging to the plaintiff, and farming it commercially. Evidence was led from a relative of the plaintiff who claimed to have been excluded by the defendant from going on land to collect coconuts. He said that the defendant informed him that the land had reverted to the estate holder and he was now the owner of it. In the statement of claim, the plaintiff had alleged that the defendant threatened this person in much the same robust and violent way as he had been threatened. That was not supported by the evidence of the witness and the defendant denied that he had ever warned off anybody apart from those who had come near his building area. As such, I do not accept the plaintiff's allegation or the evidence of the witness that he was prevented from entering the land which he said was his custom to collect coconuts. I do, however, on the admission of the defendant accept that he used part of the land for cultivation and to the extent he did not get permission of the plaintiff to do so I find that was wrongful. I heard evidence that part of the land was too swampy for cultivation. Because the area and extent of cultivation was so uncertain, I invited the parties to see if they could agree on an area. The parties reported that they agreed upon a figure of two acres over a three years period.
[51] Mr Niu later argued, in his closing submissions, that because the defendant had excluded the plaintiff's relatives from the land generally a higher land area should be considered even though the defendant may not have farmed it himself. However, I do not accept that he did this or that allowing a greater sum would be appropriate. I consider that a figure of 2 acres on all the evidence I heard to be a reasonable assessment of the area used and the period, over which it was worked, about three years ending it seems in about 2008. I also heard evidence from a witness experienced in land values for commercial farming whose evidence I accept that today's values would mean a yearly rental per acre of $2000.00 pa'anga per annum. I accept that the defendant ceased farming in about 2008, so I consider a fair value for his use of the land per acre would be $1500.00. That would mean the overall value of the damages by way of menses profits payable to the plaintiff would be $9000.00 pa'anga.
[52] I consider that it is appropriate to accede in the circumstances of this case to Mrs Tupou's request for an order that the plaintiff take all steps necessary to surrender the land to the defendant and his son. I do this on the basis of the findings above that the plaintiff in seeking to have the defendant evicted and his house removed is acting unconscionably. Such an order is required to do "minimum justice" (an expression used by Scarman LJ in Crabb v Arun District Council [1976] Ch 179, at 198 [1975] EWCA Civ 7; [1975] 3 All ER 865, at 880). This approach has a long lineage under the heading of "proprietary" estoppel, (see Dillwyn v Llewelynn ( [1862] EWHC Ch J67; 1862) 4 DeGF & J 517, [1862] 45 ER 1285 and Ramsden v Dyson [1866] UKLawRpHL 7; (1866) LR 1 HL 129, particularly the dissenting judgment of Lord Kingsdown at p 170). In Dillwyn v Llewelynn, the Court required a father upon whose representation that he would secure title a son erected a building on his father's land, to fulfil that expectation and secure title for him. More recently, in Inwards v Baker [1965] EWCA Civ 4; [1965] 2 QB 29, Lord Denning MR said;
"It is an equity well recognised in law. It arises from the expenditure of money by a person in actual occupation of land when he is led to believe that as a result of the expenditure, he will be allowed to remain there. It is for the court to say in what way the equity can be satisfied. I am quite clear in this case it can be satisfied by holding that the defendant can remain there as long as he desires as his home."
Similarly, in Pascoe v Turner [1979] 2 All ER 944, the Court of Appeal held that a woman, who had remained in the house of her former lover on the assurance that the house would be hers and with his knowledge and encouragement spent part of her savings on improvements, was entitled to the property and could not be evicted. The Court considered that the plaintiff had manipulated a ruthless determination to evict her and her quiet enjoyment could only be assured if title was vested in her rather than her being awarded a mere licence to occupy for the rest of her life.
[53] Although she did not claim any relief expressly based on estoppel, I consider the pleadings in the counterclaim and the averments to be sufficiently wide to enable me to make orders requiring the plaintiff to take all steps necessary to surrender lots 2 and 3 to the defendant as the plaintiff represented he would do in the surrender letter of 1st May 2002. Given that much of the land has now been surrendered and approved, including the surrenders to Mr Pousini and Mr Tavake, the plaintiff has no heir, any objection seems to have been resolved, and the land has a substantial house built on it, it seems unlikely that there will be any impediment to the defendant and his son being registered. Nor, in my view, does such an order violate the principle laid down by the Tongan Privy Council in O G Sanft and Sons Ltd v Tonga Tourist and Development Co Ltd [1981-1988]Tonga LR 24 that in Tonga;
"There is no room for the application of any rule of equity- all claims and titles must be strictly dealt with under the Act. No estate, right, title or interest can be created except in accordance with the provisions of the Act."
All that the order does here is to require the plaintiff to take the necessary steps to surrender as he represented he would do leaving the issue of consent and registration for the Minister of Land to consider. It does not create a proprietary interest in land. That is a matter for Cabinet and the Minister.
[54] Further, because I have found that the plaintiff did agree to sell lots 2 and 3 to the defendant at an overall price of $A 13,000, it is appropriate to order specific performance. As a condition of specific performance, the plaintiff is required to pay the outstanding money owing on the contract being $A 741.81 together with interest from the 1st June 2002, when I accept that construction commenced.
[55] I make the following orders based substantially on the directions given by the Court of Appeal in Piukala v Fonohema [2002] Tonga LR Report 200 at 2012;
DATED: 12 MARCH 2013 J U D G E
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