Lavemai v Pua'a [2018] TOLC 14; LA 2 of 2018 (21 August 2018)

IN THE LAND COURT OF TONGA
NUKU’ALOFA REGISRY

LA 2 OF 2018

BETWEEN : LOFI GOODWIN LAVEMAI
- Plaintiff

AND : SIONE TAUFAKALOLO PUA’A
- Defendant

BEFORE JUSTICE NIU AND ASSESSOR TU’IFUA

Date of hearing: 6^th and 7^th August 2018
Submission by Defendant: 9^th August 2018
Submission by Plaintiff: 14^th August 2018
Counsel for Plaintiff: Mrs. Loupua Pahulu-Kuli
Counsel for Defendant: Mr. Siosifa Tuutafaiva
Date of Judgment: 21^st August 2018

J U D G E M E N T

Claim of the plaintiff

1. The plaintiff claims that he has lawfully been granted a town allotment at Haveluloto, Tongatapu, estate of Noble Fielakepa, (and that it was registered and a deed of grant was issued to him on 21 March 1990) and that the defendant has unlawfully occupied it (or part of it) since 2015 and has been notified to vacate it but has refused to do so. The plaintiff prays for an order to evict the defendant.
   
2. The plaintiff also seeks damages of $12,000 against the defendant for damages caused to construction material which had been imported (for construction of his dwelling house on the allotment) by the delay in construction due to the refusal of the defendant to vacate the allotment.
   

Defence of the defendant

3. The defendant raised a multiplicity of issues in his statement of defence but at a chamber directions hearing held before the Lord Chief Justice on 29 June 2018, defendant counsel confirmed that the only issue for the trial was whether the plaintiff’s claim was time barred.
   
4. The Lord Chief Justice issued a minute of that hearing and no counsel raised any objection to it.
   
5. Mr. Tuutafaiva, counsel for the defendant appears to confirm that too in his submissions filed 10 August 2018 because 19 of 23 paragraphs of the submissions concern the time-bar issue, and 3 paragraphs deal with the damages claim, namely that no evidence has been adduced to substantiate them.
   

The facts

6. I will briefly outline the facts, as I have found them proved during the trial, in view of references made to them in the submissions of counsel.
   
7. Noble Fielakepa, the estateholder of Havelu, Tongatapu, was married to one Losana, who had a sister, Soko. Soko was married

to one Talanoa Fuka, but Soko had already had her children, Salote (f), Mounga, Fataua, Uikelotu (adopted) and Tatafu. As a favour to his wife, Losana, Fielakepa gave Soko an area of land to be allocated by her to her children and grandchildren as their town allotments, and he signed their applications made and the Minister of Lands granted those allotments to them.

8. The area given was such that there were 8 town allotments of 30 perches each and a surplus of 14 perches, and that each lot was adjacent to each other in a row from west to east as follows:
   
   • (1) Mo’unga
   • (2) Fataua
   • (3) Uikelotu
   • (4) Katuotua (son of Tatafu)
     
   • (5) Salote (daughter of Soko)
   • (6) Tatafu
   • (7) Ana Malia (daughter of Salote)
   • (8) Kalisima (adopted son of Salote)
   • (9) Surplus 14 perches
     
9. By the 1070’s, the lots no (6) to (9) above, (although allocated by Soko and her eldest and only daughter, Salote, as stated above) had not been applied for or granted, but they were all fenced in together to Salotes lot (5). No house was on it yet.
   
10. In or about 1973, a nephew of Talanoa Fuka (husband of Soko), Feleti Moala and his wife, Palu Moala, came from Vava’u to educate their children in Tongatapu, and with the permission of Soko and Salote, they occupied lot (6) temporarily while their children were attending school here in Tongatapu.
    
11. In 1979, Ana Malia, daughter of Salote, married Lofi Lavemai (now the plaintiff) and they lived together with Salote on Salote’s lot (5).
    
12. In 1983, Fielakepa had a problem. His church minister wanted a town allotment in this area for his son. Fielakepa asked Soko and Salote to give lot (6) for the Minister’s son, and Soko and Salote agreed and in consequence, Fielakepa himself instructed Feleti and Palu Moala to move out of lot (6) and they went and occupied a clear area between Uikelotu’s house (lot (3)) and Katuotua’s house

(lot (4)). The minister’s son was granted the lot (6) as his town allotment.

13. In gratitude for the assistance of Soko and Salote to solve the problem with the church minister, Fielakepa agreed that the surplus area of 14 perches (lot (9)) be halved between Ana Malia (lot (7)) and Kalisima (lot (8)) so that they would each have 37 perches.
    
14. In 1984, with the consent of Soko, Salote and Ana Malia, Ana Malia’s husband, Lofi Lavemai (plaintiff) applied for lot (7) to be his town allotment, so that it would, in time, be inhereted by their son, Viliami. Fielakepa signed his consent to it on 9 April 1984. On 11 April 1984, the survery fee was paid. On 11 May 1984, the income tax of the applicant for the year 1976 was paid. On 15 May 1984 a file was created in the Land Office for the proccessing of the surverying and preparation of deed of grant. All these information
    

are shown in the copy of the plaintiff’s application which was produced as Exhibit P.1

15. As of the time of that applicantion, the area of 37 perches applied for by the plaintiff was vacant and available, and the defendant’s grandparents (Feleti and Palu Moala) were residing in the area between Uikelotu’s house and Katuotua’s house.
    
16. In about 1986, Feleti Moala purchased a small wooden house about 24 feet square from a neighbour, Paini, and Palu Moala asked Salote if they would drag it over onto Ana Malia’s lot (7) (already applied for by the plaintif) temporarily whilst their son was studying to be a health officer and that as soon as he finished, they would move out and go back to Vava’u. Salote agreed and the house was dragged over to the allotment on coconut logs being used as rollers.
    
17. In 1989 or so, the son completed his studies and Feleti and Palu Moala left and returned to Vava’u, but their daughter, Lausiva and her husband, Kolo Pua’a, and their chidlren who had been living in Tofoa came and lived in the house. In fact they came to the house before Feleti and Palu left.
    
18. At that time, the plaintiff had not been registered on the town allotment lot (7) and upon further instructions of the Land Office, a

letter was written by the town officer in support of the application of the plaintiff. Copy of this letter was produced as Exhibit P.2.

19. At about the same time, Lausiva Pua’a (mother of the defendant) went and asked Fielakepa for the allotment on which the (purchased) house was situated (lot (7)). Fielakepa told her that lot was already granted but there was a surplus area which was not big

enough for a town allotment but which they could lease. Lausiva went to the Land Office and was informed by a survey officer there that that area had already been granted to the plaintiff.

20. The allotment of the plaintiff (37 perches) was subsequesntly surveyed, pegged and a deed of grant was registered and issued to him on 21 March 1990. A copy of that deed was produced as Exhibit P.4.
    
21. In about 1992, Ana Malia (plaintiff’s wife) asked the defendant’s mother, Lausiva, when they would move out of the allotment. Lausiva asked Ana to please let them stay until her daughter who was studying at USP to be a doctor would finish her studies and
    

they would buy a piece of land and move there. Ana Malia agreed and they stayed on.

22. In about 2000, Lausiva came and asked the plaintiff himself if he would give them the land on which they were living. The plaintiff told her that he couldn’t because it was not his father’s or mother’s land but that it was his wife’s and her mother’s land and he just could not do that.
    
23. In about 2002, the daughter having qualified and was working at the hospital, Lausiva and her husband acquired their piece of land at Tofoa. Lausiva asked Ana Malia to let them extent their (purchased) house because it was overcrowded and that as soon as they built their house on their land at Tofoa, they would move there. Ana Malia agreed and they stayed on.
    
24. In about 2008, Ana Malia asked Lausiva what had happened to their house at Tofoa, and Lausiva asked her to let them finish building it and when it was finished they would move there and leave the (purchased) house and its extension there for Ana Malia in appreciation for her kindness.
    
25. In about 2010, the daughter left and lived in the U.S and no house had been built at Tofoa at all.
    
26. In 2014, the plaintiff’s son, Viliami, brought a container of building material for construction of the plaintiff’s house on his town allotment. Viliami spoke to the defendant that they move out so that construction would commence. The defendant told him that he

would speak to his parents, Lausiva and Kolo. Lausiva then came and apologised to Ana Malia and asked that they be allowed to stay

while they try and build a shelter on their land at Tofoa and then move. Ana Malia agreed.

27. Soon after that, they began their construction of their house at Tofoa and in 2015 it was finished and they moved out, but the defendant and his wife and children did not move. They remained

on the allotment in the extended (purchased) house. Ana Malia spoke to the defendant to vacate and to take their house with them

but the defendant told her that he would not move and if she wanted to, she could sue him in court. He refused to move out.

28. It was not until 2017 that a lawyer wrote on behalf of the plaintiff to the defendant and demanded that he vacate the allotment and to
    

take his properties with him. The letter gave him 6 months to do that.

29. The defendant did not move out and the plaintiff then filed his claim in this Court in March 2018.
    
30. I find as a fact that the defendant has lived on the town allotment of the plaintiff with the permission of the plaintiff up until 2015.

That permission was given by Ana Malia on behalf of the plaintiff and that permisssion, although given to Lausiva, included the

defendant because Lausiva was making her request for the permission on behalf of herself and of her children, one of whom was the defendant who was living with her on the allotment.

31. I also find as a fact that that permission ended in 2015 when the defendant was told to move out and he refused to do so.
    
32. As to the damages to the building material for the house of the plaintiff, I am satisfied that the plaintiff has suffered that loss. He gave sworn evidence, when cross-exmined by defendant counsel, that $12,000 worth of material has been damaged by the long delay in construction.
    

The submissions of the defendant

33. The defendant submits that

(a). The claim of the plaintiff for eviction of the defendant is time barred, and that

(b). The claim for $12,000 damages has not been proved by the plaintiff, and that even if there was such loss, the defendant did not cause it.

Time bar

34. As to the time – bar, the defendant submits that:
    

(a). the plaintiff’s right to bring his claim first accrued him on 21 March 1990 when he was registered as holder of the town allotment, and that

(b). any permission granted by Salote, Ana Malia and/or the plaintiff to Lausiva to occupy the town allotment did not in law extend the time limitation prescribed by S.170 of the Land

Act, and alterntively such permission did not bind the defendant.

Ten years did not run from 1990

35. Mr. Tuutafaiva, for the defendant, argues that the 10 years limitation imposed by S.170 of the Land Act begins to run from the time of registration of an allotment in a holder, and the holder must make his claim in the Land Court before 10 years from the date of registration of the allotment in his name expire. He argues that as the allotment was registered in the plaintiff’s name on 21 March 1990, the right for him to bring the present action against the defendant expired on 21 March 2000, and accordingly his

present claim, which has only been filed in March 2018, is time barred by S.170 of the Land Act.

36. The Authority he relies upon for that argument is the decision of the Court of Appeal in Fau v Fau [2016] Tonga LR 172, and relies upon the statement of the Court on page 175 which was as follows:
    

“the apparent intention of S.170 is twofold. The first is to afford a person a lengthy period to pursue a claim asserting, amongst other things, a right to or interest in land under the Land Act. However the second is to ensure certainty about

amongst other things, rights and interest under the Act after the expiration of the lengthy period.”
And on the same page as follows:

“Ownership and possession of land is of great importance in Tonga. The Act should be coustrued to the extent possible, in a way that creates certainty rather that uncertainty.”

37. He argues that the law (S.170) gave the plaintiff a lengthy period of 10 years, that is from 1990 to 2000, to evict the defendant from the allotment, by filing his claim in the Land Court, and because he failed to do so, the law grants to the defendant the certainty of continued occupation of the allotment. In fact, he argues, the

plaintiff has granted to the defendant 28 years of continued occupation before he filed his claim in the Court instead.

38. He argues that the repeated extensions of permission only to Lausiva and her husband did not apply to the defendant and his wife and children.
    
39. I am unable to accept Mr. Tuutafaiva’s arguments for the following reasons:
    

(a). The case of Fau v Fau referred to by him is not an authority for

the proposition he makes, namely, that an allotment holder must

bring his claim within 10 years of the time he is registered as holder

of the allotment.

(b). In the Fau Case, the rightful heir was Peauafi but his younger

brother, Sosefo, had the allotment of their father transferred to

and registered in his name in 1988. Peauafi had the right to claim

the allotment from Sosefo because he was the older son and

rightful heir, and although he was not registered as holder of the
allotment, the Court held that the right to bring the claim against

Sosefo accrued to Peauafi in 1988 when Sosefo was registered as

holder, and because he failed to do that within 10 years, his own

son and plaintiff in that case was barred from bringing any claim to

challenge the succession of Sosefo’s son to the allotment upon the

death of Sosefo in 2012.

(c). The right to bring a claim accrues to a person upon the

occurence of the unlawful act, if the person has the right to the allotment irrespective of whether he has been registered as holder of the allotment or not. That is what Fau v Fau decided. Peauafi had

the right to succeed to the allotment of their father but he had no right to claim it from his younger brother until his younger was unlawfully registered as holder of it. He was required by S. 170 to make his claim within 10 years of that unlawful registration. Because he failed to do so, his own son, the plaintiff, was barred under S.170 as well.

(d). That case is therefore not an authority for the argument that a holder must file his claim to evict any person whom he has agreed to occupy his allotment from his allotment within 10 years of the registration of the allotment in his name, such as Mr. Tu’utafaiva has submitted. In fact, an allotment holder, duly registered as such, is not prohibited by any law from granting permission to another Tongan, and his family, to occupy and reside upon his allotment. And during the currency of such permission, the Tongan man and his family are not guilty of trespass or unlawful occupation of the allotment and cannot be evicted therefrom. It is only upon the expiry or withdrawal of the permission that the presence of the Tongan man and his family become unlawful. Only then is the right to claim the eviction of the man and his family is properly said to have accrued to the allotment holder.

(e). Mrs. Pahulu-Kuli for the Plaintiff correctly refers to the authority of Manu v Aholelei [2015] Tonga LR 135 and to Halsbury’s Laws of England 4^th Edition, Vol.28 which states:

“No right of action to recover land accrues unless the land is in the possession of some person in whose favour the period of limitation can run. Such possession is called adverse possession.... Occupation of land as a licensee is not adverse possession.”

In the present case, Lausiva and her husabnd Kolo and their children, including the defendant and his own family, were all

licensees, and they were not in adverse possession of the allotment from 1990 to 2015 because the plaintiff, the allotment holder, had permitted them to so remain on the allotment.

Permission granted created no cause of action

39. Mr. Tuutafaiva argues that when the plaintiff gave permission to Lausiva and her family to remain upon the allotment, the 10 years limitation imposed by S.170 could not thereby be extended, that is, from the date when he was registered as holder of the allotment to a further date in future in excess of 10 years. He says that the 10 years for an allotment holder to evict any person is set by law to
    

run from the date of registration and no one has any authority to extend it.

40. Again I am unable to accept Mr. Tuutafaiva’s agrument for the very reasons I have already given in the foregoing paragraphs. The cause of action of the plaintiff did not accrue to the plaintiff on the date of registration of the allotment in his name. There was no cause of action then because the plaintiff was content to permit and he permitted Lausiva and her family, including the defendant, to occupy and reside upon his allotment. They were licensees and they were not in adverse possession of the allotment to found a cause of

action to claim their eviction. By so doing, the plaintiff was not thereby extending his 10 years limitation period because the 10 years had not even begun. No right to claim had accrued to him as yet, and so s.170 was not breached in any way by the granting of the permission by the plaintiff to the defendant’s mother and family to occupy his allotment.

Result

41. Accordingly, I hold that the defence of the defendant fails and that the claim of the plaintiff to evict the defendant from his allotment is upheld. I make the following orders:
    

(a). The defendant shall vacate the town allotment of the plaintiff as contained in deed of grant no. 312/18 together with his family and properties and belongings by no later than the 31 October 2018.

(b). The defendant shall pay the cost of the plaintiff in these proceedings, to be taxed if not agreed.

Damages

42. As to the claim of the plaintiff for damages of $12,000, Mr. Tuutafaiva argues that there was no evidence to prove that the alleged building material were damaged, and that evidence was required to prove the loss claimed. He also argues that there was no evidence that the defendant caused the damage to the material.
    
43. I am afraid that Mr. Tuutafaiva cannot now argue that. When the Chamber direction was held before the Lord Chief Justice on 29 June 2018 to confirm the issues to be tried at the trial, he did not

raise then the issue of the damages of $12,000 claimed by the plaintiff for the damage of his building material. The only issue that was raised and confirmed was that of the time bar. The Lord Chief Justice confirmed that in his minute of that chamber direction which were duly served upon counsel. Mr. Tuutafaiva raised no objection to that minute. By right, Mrs Pahulu-Kuli for the plaintiff was entitled to rely upon that and accordingly did not need to produce any evidence in reliance of it.

44. I have found as a fact, because Mr. Tuutafaiva raised it on cross-examination of the plaintiff, that there was sworn evidence of that damage of $12,000, and I am satisfied that that damage was

caused to the material and that it was caused by the delay of the construction because of the deliberate refusal of the defendant to vacate the allotment.

Result

45. Accordingly, I uphold the claim of the plaintiff for damages of $12,000 and I order that the defendant is liable to the Plaintiff for that sum and if he shall not pay it by 31 October 2018, he shall be liable for interests thereon at 10% per annum until payment of the

same and the plaintiff may apply for enforcement of payment at any time after 31 October 2018.

L. M. Niu
NUKU’AlOFA: 21 August 2018 J U D G E