Veatupu v Kaufusi [2018] TOLC 19; LA 16 of 2018 (8 November 2018)

IN THE LAND COURT OF TONGA
NUKU’ALOFA REGISTRY

LA 16 of 2018

BETWEEN : 1. SIONE PANUVE VEATUPU
2. LUPE VEATUPU

- Plaintiffs

AND : 1. NAITINGIKEILI KAUFUSI
2. MINISTER OF LANDS
- Defendants

BEFORE HON. JUSTICE NIU

To: Mr. W. C. Edwards Snr SC for applicant (first defendant)
Mrs. P. Tupou for first respondents (the plaintiffs)
Ms. ‘A. Kefu SC for second respondent (second defendant)

Hearing date : 26 October 2018

Decision date : 8 November 2018

DECISION

1. The first defendant has applied for an order to strike out the claim of the plaintiffs, upon the ground that their claim is an abuse of the process of the Court (as is provided for in Order 8 Rule 8(1)(d) of the Rules) because he says that the plaintiffs have no standing (locus standi) to bring the claim they have brought against him. He says that the plaintiffs have no standing because they do not have any legal or beneficial or equitable right or interest in the lease (no.5452) which has been cancelled by the second defendant at his request. He says that that is because, the lessee has died and the beneficiary or heir to the lease, has not been granted letters of administration by the Supreme Court in respect of the lease up to now, and that the husband has no lawful authority to grant any permission to the plaintiffs to occupy the land of the lease or to bring this action on his behalf to re-register the lease.
   
2. The plaintiffs oppose the application. They say that they were authorised by the lessee to occupy and to use the land of the lease up to when she died and that they continued to occupy and use it up to now with permission of her widowed husband. They say that the cancellation of the lease by the second defendant was based upon the ground that the rent of the lease had not been paid but that was wrong because the rent of the whole term of the lease had already been paid in advance and that if it was based upon the ground that the lease or the land of the lease had been abandoned it was wrong also because they had never abandoned or ceased to occupy or use it at any time up to now. They say that there is no time limit for an application for letters of administration to be made by the husband in respect of the lease, but because the lease has been cancelled, there is now nothing in respect of which such an application can be made by the husband. Hence, they say, the need for this Court to order that the lease be re-registered by the second defendant.
   
3. The second defendant, as conveyed by Mr. Kefu, takes no side in this application of the first defendant.
   

Consideration

4. Occupation.

The plaintiffs say, and the first defendant appears to accept (in para. 1 of his statement of defence), that the plaintiffs have been in occupation of the land of the land of the lease before the lessee died (in 2001) and after the lessee died up to now.

5. Licence to occupy.

The plaintiffs say that the lessee had authorised them to occupy the house on the land of the lease whilst she was still alive and they did occupy the house and the land of the lease right up to when the lessee died. If that is true, then the plaintiffs may have lawfully occupied the land by way of a licence granted by the lessee.

6. House and lease vested in the Supreme Court.

Section 11 of the Probate Act provides that from the death of an intestate until administration be granted, the personal property of the deceased shall be vested in the Supreme Court. It is not known whether the lessee died “intestate”. If the deceased had lawfully made a will before she died, the house and lease would not have vested in the Supreme Court. It may be the case that the lessee died intestate because no mention has been made by any party or by the widowed husband that the lessee had left a will. Accordingly, it seems that the ownership of the lease vested in the Supreme Court when the lessee died.

7. Title to the town allotment as lessor.

The lease was and is of part of the land of a town allotment which was held by one Tevita Uluilakepa, the father of the lessee (a daughter) and of the first defendant’s father (Viliami Uluilakepa). Upon the death of the father, Tevita Uluilakepa in 1999, the allotment was transferred to the first defendant because his father, Viliami, who was the heir, had already died in 1998. As holder of the allotment, the first defendant became the lessor of the lease.

8. Notice to vacate in 2001.

In paragraph 12 of the first defendant’s affidavit dated 20 September 2018 in support of his application filed on the same day, the first defendant says that the second plaintiff had been asked since 2001 to vacate but has refused to do so. If that was so, and the plaintiffs did not vacate, and the first defendant did not file proceedings to evict them, then he may be said to be barred under s.170 of the Land Act from bringing an action to evict the plaintiffs.

9. First defendant requested cancellation of the lease.

The plaintiffs say that the first defendant lodged a letter with the second defendant on 11/9/2017 requesting the cancellation of the lease because it had been abandoned, neglected and failed to be used for 3 years, but that there was no such abandonment of the lease.

10. Second defendant recommended termination of the lease to Cabinet.

The plaintiffs say that the second defendant recommended to Cabinet that the lease be terminated upon the ground that the annual rent of the lease had not been paid and that the lease was neglected, but that the rent had already been paid up to the end of its term and that the lease had not been neglected at all.

11. Lease terminated by Cabinet.

The plaintiffs say that Cabinet terminated the lease on 18 October 2017 on the said recommendation made by the second defendant as stated in paragraph 10 above.

12. Notice to vacate by letter 14/11/2017.

By letter dated 14/11/2017, counsel Mo’ale, for the first defendant, gave written notice to the second plaintiff to vacate the house and land of the lease in 7 days, upon the basis that the lease had been terminated by Cabinet.

13. Refusal to vacate.

By letter dated 11/12/2017, counsel Taione for the plaintiffs replied to the first defendant himself that the plaintiffs would not vacate because the rent had already been paid for the full term of the lease.

14. Re-surveying of land of the lease.

By letter dated 5 February 2018, present counsel of the plaintiffs, Mrs. Tupou, wrote to the second defendant, and, inter alia, informed him that she was informed that officers from the Ministry of Lands had been to the land of the lease to re-survey the land for the purpose of drawing up a deed of lease for a third party, and she informed him that those officers were aware that there was a building on the land which was occupied by persons (other than that third party or the first defendant or other person authorised by him).

15. Disputing grounds of termination of the lease.

In that said letter of Mrs. Tupou of 5 February 2018, she informed the second defendant that the grounds of termination of the lease were wrong because the rent of the lease had been paid and attached a copy of the receipt of that payment which showed that the rent was paid up to end of the lease in 2083, and that the land was not abandoned or neglected because there was a substantial house situated on the land, which house had been renovated by the plaintiffs at their expense in the sum in excess of $80,000. So the Minister was aware, according to the plaintiffs, of the errors of the termination of the lease and of the presence of the house and occupation thereof by the plaintiffs before he granted the lease to Huang Hua.

16. Lease no. 9214 of Huang Hua granted 19 February 2018.

By letter dated 14 August 2018 (after the first defendant was served with the claim of the plaintiffs on 7 August 2018) Mr. Edwards as counsel for Huang Hua wrote to the plaintiffs and informed them that Huang Hua had already been granted a lease (no. 9214) of the land (on which the house was) on 19 February 2018 and required that they vacate the land in 2 days. Mrs. Tupou, for the plaintiffs replied to Mr. Edwards that his client, Huang Hua, might need to be joined as a party to these proceedings.

17. The plaintiffs were not alleged to be squatters or trespassers.

Until the first defendant filed his defence and counterclaim, it was not alleged by anyone that the plaintiffs were squatters or trespassers except when the first defendant notified them in 2001, after the lessee died, to vacate the land of the lease.

18. The plaintiffs may have been occupying the land of the lease lawfully.

In the case of To’a v Taumoepeau & Minister of Lands [2015] Tonga LR 62, the allotment holder, Matei, had authorised his adopted son, Dr. Maka, to occupy and use his house on the allotment. Matei died leaving no heir to succeed to the allotment and it reverted to the Crown. Dr. Maka applied to the Minister for grant of the allotment to him as his allotment. The Minister granted the allotment to To’a instead who was a blood relation of Matei and who applied for the allotment some 6 years after Dr. Maka had applied for it, and despite the fact that Dr. maka was in occupation and use of the allotment. In considering whether or not the grant to To’a was lawful, the Court posed the question: was Dr. Maka’s occupation of the land after Matei’s death lawful? It answered it in paragraph [53] of its judgement:

“[53] In my view the reversion of the land to the Crown by operation of law did not render Dr. Maka’s continual use of the land unlawful. He did not become a trespasser. While I accept that his licence to reside there came to an end with Matei’s death there is nothing to suggest that the Crown which was prima facie entitled to possession took any steps to evict him. Accordingly, he was in possession nec vi, nec clam, nec precario (see Nicholas, Roman Law, Oxford 1962). Secondly, it is notorious that applications for grant and registration typically take months to process. It would be absurd, for example, to suggest that the lawful occupant of land subject to a section 83 reversion occupied the land unlawfully while his section 43 application was being processed (and see Tafa v Viau – above, paragraphs 36 – 39).”

19. If it is the law that a person is occupying the land lawfully when the ownership of that land reverts or passes to another person, such as when the lease in the present case passed to or became vested in the Supreme Court, can that person not have the right to be heard in a request, such as when the first defendants requested that the lease be terminated, or the right (the locus standi) to come to this Court to order that the acceptance of the request, such as the termination of the lease in the present case, was unlawful?
    
20. At present, according to the pleading and to affidavit evidence filed, the plaintiffs are in occupation and possession of the land of the lease in issue in these proceedings, and they have been in occupation and possession of it since the lease was granted in 1993, that is, 25 years. They may have also expended, as they have stated, some $80,000 in renovations they say they have made to the house situated on the land. If that is so, they may have every right to be concerned that the lease under which authority they have so occupied the land and house for so long was terminated in breach of the principle of natural justice, that is, without their voice having been heard.
    
21. I am of the view that any person in occupation of any land, in pursuance of any right conferred by law such as the plaintiffs say they have under the lease, has the right to be heard before a decision is made by any authority to terminate that right under which such person has occupied that land.
    
22. In this case, the plaintiffs say they occupied this land in pursuance of the lease, and that the defendants have caused the lease to be terminated by Cabinet without having afforded to them the opportunity of being heard. They have brought their claim to order that that termination was unlawful and that the lease be re-registered, so that they can lawfully continue to occupy the land in question.
    
23. Accordingly, I find that the plaintiffs do have the standing, the locus standi, to bring the claim which they have brought in this action against the defendants.
    
24. I am also of the view that the lessee of the new lease, lease no. 9214, Huang Hua, should be joined as a defendant in these proceedings because he ought to be afforded the right to be heard and to defend his said lease. The plaintiffs, it appears, were not aware of his lease until after their claim was filed.
    

Orders

25. Accordingly, I make the following orders:

(a) The application of the first defendant to strike out the claim of the plaintiffs is dismissed with costs of the application to the plaintiffs against the first defendant, to be taxed if not agreed.

(b) The plaintiffs are to file and serve an appropriately amended statement of claim joining the lessee of lease no. 9214, Huang Hua, as third defendant, within 28 days of the date of these orders.

(c) All the defendants shall file their statements of defence to the amended statement of claim within 28 days of service of the same on them.

(d) This matter will be called in chambers at 9:00am Monday, 7 January 2019, for further directions.

L. M. Niu
NUKU’ALOFA: 8 November 2018. J U D G E