Nginingini v Nginingini [2018] TOLC 4; [2018] Tonga LR 32; LA 16 of 2016 (30 January 2018)

IN THE LAND COURT OF TONGA
NUKU’ALOFA REGISTRY

LA 16 of 2016

BETWEEN : ‘ALISI NGININGINI

Plaintiff

AND : LUPE NGININGINI

Defendant

AND MINISTER OF LANDS

First Third Party

AND ILAISA NGININGINIOFOLANGA

Second Third Party

BEFORE PRESIDENT PAULSEN

To: Mr. S. Tu’utafaiva for the plaintiff
Mrs. P. Tupou for the defendant
Mr. ‘A Kefu SC for the first third party
No appearance for the second third party

Hearing: 30 June 2017, 11-12 January 2018
Ruling: 30 January 2018

RULING

The claim and the defenses

[1] This is a family dispute. The plaintiff (‘Alisi) is the daughter of the second third party (Ilaisa) and was the sister of Sosefo Nginingini (Sosefo). The first defendant (Lupe) is Sosefo’s widow. Sosefo was, until his death, Ilaisa’s heir.

[2] The short background is as follows. Ilaisa’s town allotment is at Kolomotu’a. With Ilaisa’s consent Sosefo built a house on Ilaisa’s town allotment. For approximately 15 years Sosefo lived in the house with Lupe. They raised their family there. Sosefo died and Ilaisa granted a 99 year lease of his town allotment to ‘Alisi. He also purported to gift the house to her. ‘Alisi has demanded that Lupe move out of the house and off the allotment. Lupe will not leave.

[3] ‘Alisi seeks an order evicting Lupe from the house and the allotment. She relies upon her lease and her asserted ownership of the house.

[4] Lupe denies the ‘Alisi owns the house. She argues that the lease is invalid because the Minister failed to make adequate enquires before granting it, that ‘Alisi’s claim is time barred and that ‘Alisi is estopped from evicting her. Lupe counterclaims for the cancellation of ‘Alisi’s lease.

The hearing

[5] After the first day of hearing Counsel advised me that they believed the parties would settle. I adjourned the action part-heard in the expectation of settlement. In September 2017 I was advised that the parties could not settle. I referred the case to mediation. Still the parties did not settle. The trial resumed on 11 January 2018 and was completed on 12 January 2018.

[6] I heard evidence from ‘Alisi and Lupe and from a Land Registry Officer. Ilaisa did not give evidence and has taken no steps.

Credibility

[7] I found Lupe to be a credible and honest witness. She was forthright in her answers. By comparison I did not find ‘Alisi credible and her evidence was neither compelling nor plausible in important respects. I also consider that she has not acted honestly in obtaining the lease. In cases of conflict I prefer Lupe’s evidence.

The facts

Ilaisa and Ana

[8] In 1995 Ilaisa (who is also known as Luani) was registered as the holder of a town allotment at Tu’atakilangi, Kolomotu’a being 1628m² Deed of Grant 344/19.

[9] Ilaisa’s wife was named Ana. Ilaisa and Ana lived at Fatai and had 11 children. Sosefo was the eldest son and heir. From around 1980 Ilaisa took a mistress at Ha’apai and lived with her. He has not at any relevant time lived on his town allotment. Ana was employed as a maid for the Tu’ipelehake and when Ilaisa went to live in Ha’apai she remained at Fatai.

Sosefo builds the house

[10] In 1997 Sosefo was unmarried and working as a seaman. He wanted to build a house on Ilaisa’s town allotment. He was the heir and had no land of his own and must have expected to inherit his father’s land.

[11] Ilaisa allowed Sosefo to build a house on his allotment. I am going to refer to this as ‘Sosefo’s house’ or ‘the house’. Ilaisa and Sosefo obtained a loan from the Bank of Tonga for the purpose. The security for the loan included a mortgage over Ilaisa’s allotment. This was registered on 8 January 1997. Sosefo later obtained further advances from the Bank, also secured by the mortgage. The Bank was fully repaid by Sosefo and the mortgage discharged on 8 July 2003.

[12] Sosefo’s house was built and largely complete by 1999. It is a four bedroom house of wooden construction with concrete foundations. It was clearly intended to be a permanent structure. Sosefo alone organised and oversaw the design and construction of the house. Sosefo made all the payments to the Bank apart from some payments that were made by Lupe’s parents when he was experiencing financial difficulties. Ilaisa made no payments to the Bank nor did Ana, ‘Alisi or any of Sosefo’s siblings.

[13] Sosefo married Lupe in 1999. Following their marriage they were away for three months before moving into Sosefo’s house. Sosefo and Lupe had four children; three sons and a girl. Initially Lupe would move to her parents when Sosefo was at sea. From the birth of their second child Lupe remained in the house when Sosefo was at sea. Sosefo and Lupe regarded Sosefo’s house as their family home and never had any intention to move from it.

[14] In 2009 Sosefo obtained a further loan from Westpac Bank of Tonga to extend the house. This was also secured by mortgage registered on 11 February 2009. Ilaisa must have agreed to this further advance and mortgage. This advance was also repaid by Sosefo but not discharged until 16 November 2015.

[15] It is not certain how much Sosefo borrowed from the banks to build and extend the house. From the memorials endorsed on Ilaisa’s Deed of Grant the amounts were in the order of TOP$90,000. There is a valuation of Sosefo’s house before the Court of TOP$175,000 (on a replacement basis). It may well be that Sosefo expended more than TOP$90,000 but for present purposes I do not think anything turns on whether it was TOP$90,000 or more than that.

Ana moves her house

[16] In around 2000 Ana’s services were no longer required by the Tu’ipelehake. Her house at Fatai was moved to Ilaisa’s town allotment. Sosefo paid the costs associated with moving the house and to make some renovations to it. The physical labour was supplied by another relative. While the work was being done Ana and some other family stayed in Sosefo’s house for around two weeks. Ana then moved into her house along with three of her children. Ana lived in her house until she died. Except on this one occasion Sosefo’s house was occupied only by Sosefo, Lupe and their children.

‘Alisi’s circumstances

[17] ‘Alisi married in 1997. In around 1998 'Alisi travelled to New Zealand with the Tu’ipelehake and prepared his meals. Upon her return to Tonga she lived with her husband’s family until they separated in 2005. ‘Alisi said that when Sosefo built the house she and Ana and all the siblings moved into it and that it was only later that the house at Fatai was taken down and moved for Ana to live in. This cannot be correct. Sosefo’s house was largely complete by 1999. ‘Alisi was overseas at the time and then later lived with her husband until 2005. In addition, Ana moved her house from Fatai when her services were no longer required by the Tu’ipelehake and she was told to leave. She left Fatai and moved her house contemporaneously.

[18] ‘Alisi also said that she moved to live with Ana from 2005. I do not accept that evidence either. She may have lived with her mother from time to time but I am satisfied that after separating from her husband she lived with various people. ‘Alisi only lived permanently with ‘Ana from around 2013, which was a little over a year before her mother died.

Sosefo acquires a town allotment

[19] In 2010 Sosefo applied for and was granted a town allotment at Kolomotu’a. The circumstances that allowed Sosefo to apply for the allotment are not altogether clear but I am satisfied that when the allotment became available Sosefo took the opportunity to acquire it for his second son and that he never intended to live on the allotment. Sosefo was registered as the holder of the allotment on 14 December 2010. Sosefo never moved to his town allotment.

Ana and Sosefo pass away

[20] Ana passed away in 2014 and since her death ‘Alisi and her children have continued to live in Ana’s house.

[21] Sosefo died on 23 October 2015. From his death Sosefo’s eldest son became Ilaisa’s heir, entitled to succeed to his town allotment.

[22] A dispute arose between ‘Alisi and Lupe. My assessment is that ‘Alisi was of the view that Lupe should move out of Sosefo’s house and to his town allotment. Lupe made it clear that she was not going to move. Ilaisa was aware that a dispute had arisen. Very shortly after Sosefo’s death he suggested to Lupe that he might subdivide the allotment between Lupe and ‘Alisi but Lupe did not agree to that. It is not hard to understand why, when her eldest son was the heir and entitled to succeed to the entire allotment in due course.

The lease

[23] On 16 November 2015 (that is just a little over three weeks after Sosefo died) Ilaisa agreed to grant ‘Alisi a 99 year lease of his town allotment. Following receipt of the application for lease the Ministry did not carry out an inspection of the allotment nor was Lupe consulted. The application for lease was processed by the Ministry with unusual haste. ‘Alisi knew the case officer at the Ministry of Lands which might explain this. Cabinet consent was obtained on 4 December 2015 and the lease was registered on 5 April 2016.

[24] ‘Alisi’s says that in addition to granting her the lease Ilaisa also gifted to her the two houses (Ana’s house and Sosefo’s house). Lupe was not aware of the lease until it was registered nor was she told that Ilaisa intended to gift the houses. Sosefo’s house was built and paid for by Sosefo. The house was owned by Sosefo and now forms part of his estate. Ilaisa could not have gifted Sosefo’s house to ‘Alisi.

Lupe claims Sosefo’s town allotment

[25] On 7 March 2016 Lupe claimed her widow’s interest in Sosefo’s town allotment. The application was granted on 17 March 2016. She has remained living with her children in Sosefo’s house. She has refused to leave despite ‘Alisi demanding that she do so.

Some conclusions on the facts

[26] It is ‘Alisi’s case that Sosefo built the house for the entire family including Ilaisa, Ana, and all the sons and daughters and for other family members to stay in when visiting Tonga. I have no hesitation in rejecting that assertion for these reasons. First, in 1997 Sosefo was Ilaisa’s heir but had no land of his own. It is entirely logical that he would expect in due course to inherit his father’s land and that he would want to build a house there for himself and for a future wife and children. Secondly, Sosefo never sought any contribution from his parents or siblings towards the cost of building the house nor did they make any contribution. If this was intended to be a ‘family house’ you would expect the family to contribute to it. Thirdly, apart from the one occasion when Ana was moving her house from Fatai only Sosefo, Lupe and their children have lived in the house. Fourthly, Sosefo’s house has just four bedrooms and it is not the house one would expect Sosefo to build had it been intended for the use of his mother, father, 11 siblings and all their families. Fifthly, the fact that Ilaisa offered to subdivide the allotment after Sosefo’s death suggest he accepted that Sosefo built the house for himself and his future wife and children.

[27] Mr. Kefu and Mr. Tu’utafaiva both argued that it is significant that Sosefo had acquired his own town allotment. It was submitted that this demonstrated that Sosefo did not in fact regard the house as his own and that he was not relying on any promises made to him by Ilaisa and intended to move to his own town allotment. I reject these submissions. Sosefo did not move to his town allotment despite the fact that five years passed between 2010, when he acquired the allotment, and 2015, when he died. He remained living in his house and I find he never intended to move to his town allotment. Lupe said, and I accept her evidence, that Sosefo acquired the allotment for his second son.

[28] For what reason then did Ilaisa grant ‘Alisi the lease? I find there were two reasons. The primary reason was to provide ‘Alisi with the means to evict Lupe and to take Sosefo’s house. The second reason was so that ‘Alisi could not be removed from the allotment upon Ilaisa’s death should Sosefo’s son inherit the land. ‘Alisi has no intention of allowing Lupe to remain on the land or in Sosefo’s house. She has made so much clear by taking this action. When asked directly by Mrs. Tupou if it is her intention to permanently take Sosefo’s house from Lupe ‘Alisi answered obliquely ‘Currently when the 99 year will expire [the land] will go back to the heir’. I expect that will be little comfort to Sosefo’s heir (and most likely his heir also) who can never expect to physically occupy the allotment while the lease remains.

Estoppel

[29] ‘Alisi has a registered lease and prima facie is entitled to possession of the allotment unless Lupe can make out one of her defences. In my view this case falls to be determined by an application of the law of estoppel.

[30] The Tonga Courts have recognised a defence of estoppel to an action for recovery of land (Tafolo v Vete [1998] Tonga LR 164, Ongolea v Finau [2003] Tonga LR 147, Pulu v Bloomfield [1974] Tonga LR 105 and Alofi v Fine [1998] Tonga LR 24 are examples). The principles of estoppel by acquiescence, with which we are concerned in this case, descend from Dillwyn v Llewelyn (1862) 4 De G F & J 517 and Ramsden v Dyson [1866] UKLawRpHL 7; (1866) LR 1 HL 129 (see also Meagher, Gummow & Lehanes, Equity Doctrines and Remedies 4^th Ed at 17-075 page 560).

[31] In Tafolo (supra) the Court of Appeal referred with approval to this quotation from Halsbury’s Laws of England [4^th Ed Reissue] Vol 27(1) at 33:

Equity recognises and enforces rights (sometimes referred to as ‘equities of possession’ or ‘equitable licences’) so as to restrict the revocation of licences to occupy or use premises which at common law would be regarded as revocable. This restriction occurs where a person who is occupying or using land has acted in reliance upon the representation or the acquiescence of the person having a proprietary interest in respect of that land. Where a person has established an express or implied licence to occupy premises, the role of equity is supportive and supplementary, but, if the legal relationship between the parties is such that the true arrangement between them will be frustrated if they are left to their legal rights and duties at law, an equity will arise notwithstanding that there has been no agreement (so that there is no contractual licence), and notwithstanding that the representation made or the belief which has been acted upon is so imprecise as not to define the duration of the right to occupy or use the premises; in such circumstances it is for the court to determine what period of occupation or use is sufficient to satisfy the equity. Such rights arise by operation of the principles of equitable estoppel.

[32] In Inwards v Baker [1965] EWCA Civ 4; [1965] 1 All ER 446, 448-449 Lord Denning said:

It is quite plain from those authorities that if the owner of land requests another, or indeed allows another, to expend money on the land under an expectation created or encouraged by the landlord that he will be able to remain there, that raises an equity in the licensee such as to entitle him to stay. He has a licence coupled with an equity....

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 that expenditure, he will be allowed to remain there. It is for the court to say in what way that equity can be satisfied.

[33] What creates the equity is the unconscionable conduct of the land holder. In Willmot v Barber [1880] UKLawRpCh 183; (1880) 15 Ch D 96, 105 Fry J said:

It has been said that the acquiescence which will deprive a man of his legal rights must amount to fraud, and in my view that is an abbreviated statement of a very true proposition. A man is not to be deprived or his legal rights unless he has acted in such a way as would make it fraudulent for him to set up those rights.

[34] In Crabb v Arun District Council [1975] EWCA Civ 7; [1975] 3 All ER 865, 877 Scarman LJ put the matter this way:

But it is clear that whether one uses the word ‘fraud’ or not, the plaintiff has to establish as a fact that the defendant, by setting up his right, is taking advantage of him in a way which is unconscionable, inequitable or unjust. It is to be observed from the passage that I have quoted from the judgment of Fry J, that the fraud or injustice alleged does not take place during the course of negotiation, but only when the defendant decides to refuse to allow the plaintiff to set up his claim against the defendant’s undoubted right. The fraud, if it be such, arises after the event, when the defendant seeks by relying on his right to defeat the expectation which he by his conduct encouraged the plaintiff to have. There need not be anything fraudulent or unjust in the conduct of the actual negotiations - the conduct of the transaction by the defendant.

The court therefore cannot find an equity established unless it is prepared to go as far as to say that it would be unconscionable and unjust to allow the defendants to set up their undoubted rights against the claim being made by the plaintiff. In order to reach a conclusion on that matter the court has to consider the history of the case under the five headings to which Fry J referred.

[35] In Siasi Tokaikolo 'Ia Kalaisi v Sione H. Maile & Ors (Unreported, Land Court of Tonga, LA 19/15, 9 Nov 16, Paulsen CJ) at [106] I summarised the relevant matters that are required to establish an equity as:

(a) An expectation or belief by person A that is encouraged by person B as to the property of person B, such as that the property is or will be the property of person A or that he has some other interest in it;

(b) Knowledge by person B of person A’s expectation or belief;

(c) Some activity by person A in reliance upon his expectation or belief such as the expenditure of money upon the property;

(d) The interest or expectation is one that person B could lawfully satisfy;

(e) Encouragement by person B of the activities of person A or at least knowledge of those activities with a failure to assert his title to the property when they are adverse to it so that it would be unconscionable, inequitable or unjust for him to rely upon his legal rights to defeat the expectation encouraged by his conduct or lack of it.

[36] If the Court finds that an equity has been established it has considerable flexibility as to the remedy it may grant. In Inwards (supra) Lord Denning noted that it is for the Court to say in what way the equity will be satisfied. The effect of the equity, and thus the remedy required to satisfy it, may differ at different points in time. Most often the Courts in Tonga have granted claimants protection from eviction for a stated period of time. It might be that in some cases monetary compensation is an adequate remedy.

[37] This Court’s remedial powers whilst flexible are not unlimited. It cannot grant relief which is contrary to some provision in the Land Act. Furthermore, as it has been held that in Tonga an estoppel only imposes a personal restriction upon the person against whom the estoppel operates and does not create any interest in land any period of occupation that is granted to satisfy an equity should, in my view, not exceed the lifetime of the landholder (OG Sanft & Sons v Tonga Tourist and Development Co Ltd [1981-88] Tonga LR 26, Matavalea v Uata [1989] Tonga LR 101, 103 and Schaumkel v ‘Aholelei anor [2013] Tonga (Unreported Court of Appeal, AC 14 of 2012, 17 April 2013).

[38] In this case it is not the landholder who seeks to assert his legal rights but ‘Alisi as lessee. It is therefore necessary to consider the position of third parties. If a claimant’s belief as to some interest or right over land was originally created by a landholder an equity might also arise against a third party including a successor in title or a person who has acquired an interest from the landholder (such as a mortgagee or lessee).

[39] A third party may be bound by an equity when (1) they have acquired their interest with knowledge of the circumstances giving rise to the claimant’s equity and (2) in the circumstances of the case it would be unconscionable for the third party to assert his/her legal rights. In such a case the equity that binds the third party is not derivative but operates directly against the third party.

[40] Consistent with well established principles of equity, knowledge in this context must include actual knowledge but also knowledge that would have been acquired but for the shutting of one’s eyes to the obvious or willfully and recklessly failing to make such enquiries as a reasonable and honest person would make (Re Montagu’s Settlement [1987] 1 Ch 264).

[41] In E.R. Ives Investment Ltd v High [1966] EWCA Civ 1; [1967] 2. Q.B. 379 the defendant had made an agreement with the plaintiffs’ predecessors in title (W) that he would have a right of way over W’s land in return for which he would not require W to remove foundations of his building that encroached on the defendant’s land. The defendant exercised his right of way and developed his land to make best use of it. The plaintiffs acquired W’s land with knowledge of the right of way but asserted that the right of way did not bind them as it was not registered. They sought an injunction restraining the defendant from trespassing on their land and damages. The Court of Appeal dismissed their claim and held that an equity arising out of acquiescence bound not only the original landowner W but also the plaintiffs. Lord Denning said at 394-395:

That gives rise to ‘an equity arising out of acquiescence’. It is available not only against the Wrights but also their successors in title. The court will not allow that expectation to be defeated when it would be inequitable so to do

[42] One of the principal reasons that it would have been inequitable for the plaintiffs to have defeated the defendant’s equity was that they were benefitting from having their foundations on the defendant’s land but did not wish to bear the burden of the condition on which that benefit was granted. Dankwerts LJ said at 400:

The plaintiffs bought the property subject to Mr. High’s equitable rights and the property was so conveyed to them. They had full knowledge of the situation, yet they continue to enjoy the benefits of the situation and wish to deny Mr. High the benefit of what he was induced to do in reliance upon the mutual arrangement. As long as the plaintiffs continue to enjoy the foundations, they must accept the terms of that enjoyment.

[43] It has been recognised in Tonga that an equity may bind a third party. In Tafolo (supra) at 164 the Court of Appeal said:

Of course, if such an equity were to be made out here, it would prima facie bind only the second respondent. But if it was shown that the first respondent, as the holder of the legal leasehold estate, also had notice of the appellant’s equity, he would also be bound.

[44] I would only add that in my view as the purpose of estoppel is to prevent the unconscionable exercise of legal rights knowledge (in the senses I have described) is not the determinant of what is unconscionable.

Discussion

[45] Lupe has made out her defence of estoppel by acquiescence. I base this on my following findings of fact which satisfy all five requirements set out Tokaikolo (see paragraph 35 above).

The existence of an equity

[46] Ilaisa was the registered holder of the allotment and entitled to allow Sosefo to both build on it and occupy it for as long as Ilaisa was the holder. Ilaisa allowed Sosefo to build his house on the allotment and encouraged and facilitated the building of the house by allowing the allotment to be mortgaged as security for Sosefo’s loans. The house was a permanent structure and could not be removed without significant damage and cost. Neither Ilaisa nor any of the other family members (apart from Lupe’s parents) took any part in building the house or contributed to the cost of doing so. Ilaisa understood that Sosefo built the house for himself (and for his future wife and children if he had them). Except on one occasion, when Ana’s house was being moved from Fatai, only Sosefo, Lupe and their children have lived in Sosefo’s house. Sosefo was expected to inherit the allotment in due course and it was never contemplated that he would be asked to move off the land. When Sosefo married Lupe she came to live on the land with no complaint from Ilaisa or the family. Together Sosefo and Lupe raised their family on the land for around 15 years and paid the loans used to build the house with money that would otherwise have been available to them for other family purposes. It would be unconscionable for Ilaisa to evict Lupe from the land.

[47] ‘Alisi is also bound by an equity and cannot assert her legal rights under the lease because it would be unconscionable for her to do so. The unconscionability arises from both her knowledge of the circumstances giving rise to Lupe’s equity (specifically I am satisfied that when applying for her lease she was aware of all of the matters set out in paragraph 46 above) and from the fact that the lease was given for the fraudulent purpose (certainly in equitable sense) of defeating Lupe’s right to occupy the house and the land.

‘Alisi’s arguments

[48] Mr. Tu’utafaiva argued that there was no evidence of any representation made by Ilaisa to Sosefo or Lupe to found an estoppel. We do not know what words passed between Sosefo and Ilaisa but that does not matter. It is enough that by his conduct Ilaisa created and encouraged a belief in Sosefo and Lupe that they had rights over the allotment which it would be unconscionable for Ilaisa (and ‘Alisi also) to now resile from.

[49] Mr. Tu’utafaiva also submitted the house was built for the entire family and was not the sole property of Sosefo. For the reasons I have already given I reject that argument.

[50] The third and fourth arguments that Mr. Tu’utafaiva advanced were related. He argued that if the house belonged to Sosefo it does not now belong to Lupe but must be dealt with as part of Sosefo’s estate. He also argues that any rights Lupe may have to the house cannot protect her from eviction from the land. Both of these submissions are correct as far as they go but they do not go far enough to assist ‘Alisi. It is enough for the purposes of this action that I find that the house does not belong to ‘Alisi and whilst ownership of the house would not of itself have protected Lupe from eviction ‘Alisi cannot evict her because she is estopped from doing so.

[51] Finally, Mr. Tu’utafaiva argued that as Lupe is now the holder of Sosefo’s town allotment she has no rights over Ilaisa’s allotment. This is incorrect. The fact that Lupe has other land that she could possibly live on does not alter the fact that it is unconscionable for ‘Alisi to now assert her legal rights under the lease. I accept that this is a matter that I must consider in determining what is an appropriate remedy.

Remedy

[52] I must now decide what remedy is required to satisfy Lupe’s equity. The equity cannot be satisfied other than by allowing her to remain in her home on the land. It is correct that Lupe has other land she could move to but at the cost of the upheaval of her life and the lives of her children, considerable emotional distress and financial loss. It would be unjust to require her to move. Lupe may remain living on the allotment for as long as she wants whilst Ilaisa is the holder of the allotment.

[53] The more difficult question is whether justice also requires me to make an order cancelling ‘Alisi’s lease. That the Court has this power is supported by decisions such as Vai v ‘Uliafu [1989] Tonga LR 56 and Ongolea v Finau [2003] Tonga LR 147. In Ongolea the Land Court cancelled the plaintiff’s deed of grant and ordered the Minister to re-register only part of the land leaving an area of 30 perches for the uninterrupted occupation of the defendants.

[54] The lease was a device to evict Lupe and defeat her rights. The existence of the lease is antithetical to Lupe’s continued occupation and might be dealt with by ‘Alisi or her successors (for instance by assignment or mortgage) in a manner that defeats Lupe’s rights. I intend therefore to direct the Minister to cancel the lease.

[55] It should not be thought that anything in this ruling is contrary to the decision in Kioa v Kioa (Unreported, Land Court, LA 5 of 2017, 17 November 2016, Paulsen LCJ) which is authority for the proposition that a landholder does not require his heir’s consent before granting a lease of his tax or town allotment. In this case the lease is not being cancelled because the heir’s consent was not obtained but because that is necessary to satisfy Lupe’s equity.

[56] It should not be thought either that this ruling means that ‘Alisi must herself move off the allotment. Sosefo and Lupe have never enjoyed the exclusive right to occupy the allotment. Lupe and ‘Alisi will need to find means by which they can both live peacefully on the land.

Other defences

[57] It is not necessary for me to consider Lupe’s other defenses but I note that the argument that the Minister owed a duty to make proper enquires before granting the lease under section 56 of the Land Act has now been raised on two occasions recently in this Court. It is within the Minister’s power to avoid such challenges by undertaking a site inspection and making inquiries as to the use and occupation of the land and the origins of any buildings on the land. I would respectfully submit that the Minister should adopt that as his practice.

Result

[58] ‘Alisi’s claim is dismissed.

[59] Lupe is successful in her counterclaim.

[60] The Minister is to cancel registered lease No 8819 dated 5 April 2016.

[61] For as long as Ilaisa is the registered holder of his town allotment (Deed of Grant 344/19) Ilaisa and ‘Alisi are not to take any steps to evict Lupe or her children from the allotment or interfere with their occupation of Sosefo’s house.

[62] Lupe is entitled to her costs which are to be fixed by the Registrar if not agreed.

O.G. Paulsen

NUKU’ALOFA: 30 January 2018 PRESIDENT