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Ma'u v Ma'u [2023] TOLC 3; LA 2 of 2022 (15 May 2023)

IN THE LAND COURT OF TONGA
NUKU'ALOFA REGISTRY


LA 2 of 2022


BETWEEN:


PENI FALAKIKO ‘IFA MA’U
Plaintiff


-and-


[1] VEAPINA MA’U
[2] ‘ESETA MANU
[3] ‘EPUEFI ‘OFA
[4] TU’INEAU LATU
[5] TU'ITUPOU MANU
[6] VA’ATI VAILEA
[7] ‘APOLOSI VAEA
[8] ‘ATIATA VAEA
[9] MALCOLM MACPHERSON
Defendants


JUDGMENT


BEFORE: PRESIDENT WHITTEN KC Lord Chief Justice
Assessor: Mr F. Tuifua
Appearances: Mrs F. Vaihu for the Plaintiff

Mr S. Etika for the First to Seventh and Ninth Defendants

No appearance by or for the Eighth Defendant
Trial: 17, 19 April 2023
Submissions: 27 April 2023 (active Defendants), 3 May 2023 (Plaintiff)
Judgment: 15 May 2023


Introduction

  1. The Plaintiff (“Peni”) is the registered holder of a tax allotment located at Loto Fualu, Pea, Tongatapu, known as “Lolopaongo”.[1]
  2. The Defendants and their families have, at different times, moved onto different pieces of the allotment, built houses, planted trees and made other improvements. It is common ground that Peni did not give any of the Defendants permission to reside on the allotment. He therefore considers them to be squatters and has issued a number of demands for them to vacate the allotment which they have refused to do. Accordingly, Peni seeks orders for the Defendants and their families to be evicted from the allotment.
  3. The Eighth Defendant, ‘Atiata Vaea, did not file a defence to the claim and has not participated in the proceeding. At trial, Mr Etika advised that, on his instructions, ‘Atiata has migrated to New Zealand and no longer resides on the allotment.
  4. By their Third Amended Statement of Defence, the other Defendants deny Peni’s claim and assert rights to remain living on the allotment on the following grounds, relevantly and in summary:
  5. By his Statement of Reply, Peni denied all the Defendants’ claims.

Plaintiff’s evidence

  1. Peni gave evidence and called evidence from Tevita Makihele and Sione Napa’a.

Peni Falakiko ‘Ifa Ma’u

  1. By his brief of evidence, which he confirmed at trial, and the admitted historical allegations in the Statement of Claim, Peni gave the following evidence.
  2. The allotment was first registered to Peni’s grandfather, Ifalame Mau’, in 1949.
  3. Peni is the only biological child of his parents, Kiko and Hengalele. He was born before they married and was legitimized by their subsequent marriage. His parents lived in a timber dwelling on the subject allotment while he lived with his grandparents as their town allotment. The tax allotment has always been valued by his family as an important asset. His grandfather and father often told him about the tax allotment. They told him to go overseas after his studies, not to change nationality or lose his Tongan citizenship, earn a living to develop and build a better house on the allotment and farm the land for commercial purposes so that his family could earn a living from it.
  4. In 1974, Peni migrated to New Zealand. In 1975, he married and obtained permanent residency in New Zealand. In 1978, he returned to Tonga to see his parents off as they migrated to the United States. His first cousin, Loka Vea, and her husband, Sione, were living in a small hut on the tax allotment to keep his parents company. After the parents left, Loka and Sione moved out leaving no one living on the allotment. In 1983, Peni returned to attend the commissioning of the Latter Day Saints Temple at Liahona. At that time, there was still no one living at the allotment.
  5. In 1995, Kiko visited Tonga to attend his father’s funeral. He remained in Tonga until 1997. Hengalele also visited that year, and the two returned to the US.
  6. On 13 March 1998, Kiko became the registered holder of the tax allotment.
  7. On 20 January 2010, Kiko passed away in the U.S.A.
  8. In 2011, Peni came to Tonga to arrange for the transfer of the allotment to his mother as widow. Her life interest was registered on 18 May 2011. During that visit, Peni found four families living at the allotment. ‘Alisita Ma’u, an illegitimate son of Lio, his wife Veapina (the First Defendant herein) and their children were living in Kiko’s house. ‘Epuefi ‘Ofa (Third Defendant) and his wife, Mele, and their children were living in a shed or hut of cardboard walls and corrugated iron roof, about 12 feet by 10 feet in size. Tu’ineau Latu (Fourth Defendant) and his wife and children were living in a shed made of tarpaulin walls and roof about 8 feet by 8 feet, with no door. Hamoni Manu and his wife, ‘Eseta (Second Defendant), and their children were living in a shed of cardboard walls and tarpaulin roof.
  9. Peni called a meeting with the four families at his parents’ house. All four attended. Tevita Makihele went along with Peni. When he enquired as to the reason they were living there, ‘Alisita Ma’u, Tu’ineau Latu and Hamoni Manu all told him that Lio had permitted them to move in and live there. Peni told them all to move out as his father did not want them living there. Tu’ineau was the only one to respond. He thanked Peni for having been able to live there and for his children benefitting by being close to Liahona High School. It was then nearly school holiday time. Tu’ineau asked Peni for permission to remain to the end of the 2011 school year and then move out. Peni agreed and the meeting ended.
  10. Peni did not ask ‘Epuefi ‘Ofa, who is Kiko’s first cousin, why he was living there because Peni had been told by his father that he had allowed ‘Epuefi to live there temporarily while he looked for a place to move to. He also told Peni that Mele ‘Ofa had been chased out of Nukunuku by ‘Epuefi’s father and that ‘Epuefi left with her. Peni told ‘Epuefi that Kiko had instructed him to leave. However, as Peni later found out, ‘Epuefi did not leave, but instead dismantled his hut and moved to another piece of the allotment nearby where he built a brick house.
  11. Peni stayed in Tonga for another month and lived with his cousin, Tevita Makihele, because ‘Alisita and his family were living in Peni’s parents’ house on the allotment.
  12. In 2012, Peni returned to Tonga because of a Court case in which his uncle Lio and his son, ‘Alisita, claimed that Peni was not Kiko’s son and heir. Neither counsel provided any further details of that case. Peni said that Lio’s claim was dismissed. At that time, Peni found the same four families still living at the allotment. He spoke to them again about vacating but they resisted and argued with him.
  13. In 2013, Peni returned to Tonga again because of the same court case. The same four families were still living in their same houses. He was unable to visit the allotment because of a restraining order that had been issued in Lio’s case because Peni’s first lawyer, Kelepi Piukala, did not file documents when required. So, Peni returned to New Zealand.
  14. In September 2013, Hengalele passed away in the U.S.A.
  15. In 2014, Peni returned to Tonga for the Court case and to arrange for the registration of the allotment in his name as the heir which occurred on 9 May 2014. He found the same four families still living on the allotment in their sheds but this time there was a concrete slab under a mango tree outside his parents’ house. He tried, without success, to find out who owned the slab.
  16. In 2016, Peni visited again and found that a brick house had been built on the concrete slab by Va’ati Vailea (Sixth Defendant). Peni did not know Va’ati and knew nothing of how he had come to be living on the allotment. Also, Peni’s parents’ house had been dismantled and, in its place, a brick house had been constructed by ‘Alisita and Veapina Ma’u.
  17. Peni “felt sad and disappointed”. He instructed several lawyers including Posesi Bloomfield, Sione ‘Etika[4] and Siosifa Tu’utafaiva, to take legal action to evict the occupants. Unfortunately, they did nothing.
  18. In Supreme Court proceeding CV 33 of 2015, Sione Kolo Ma’u, another of Lio’s sons, claimed that Peni was not the legitimate heir to Kiko, and sought an order for cancellation of Peni’s grant and registration. On 23 March 2016, Paulsen LCJ dismissed Sione’s claim finding:
“[20] There is absolutely no doubt in my mind that the first defendant [Peni] is in law the legitimate child of his parents Hengalele ‘Ifa and Falakiko ‘Ifa.”
  1. Peni returned to New Zealand for medical treatment and next returned to Tonga in 2020. By then, the rest of the Defendants, being the Fifth Defendant (a son of Hamoni who had since passed away and ‘Eseta Manu), ‘Apolosi Vaea (Seventh Defendant), ‘Atiata Vaea (Eighth Defendant) and Malcolm MacPherson (Ninth Defendant) had moved onto the allotment and built houses.
  2. That was the first time Peni met ‘Apolosi Vaea who was tending crops planted on the allotment. He asked ‘Apolosi why he was cultivating his land. ‘Apolosi also said that he was permitted on by Lio. Peni replied that Lio had died a long time ago. ‘Apolosi then said he had been permitted on by ‘Alisita Ma’u and had built a shed on the land. Peni told ‘Apolosi to take his shed and crops and leave within one week because he was the owner. Peni believed that ‘Atiata Vaea is ‘Apolosi’s son because both their houses were close to each other. Instead of vacating the allotment as Peni had demanded, by 2021, ‘Apolosi had built a brick house on the allotment.
  3. According to Peni, Malcolm moved onto the allotment in 2020 and built a timber house. Peni asked Malcolm’s wife why they were living there. She told him that they had been admitted by ‘Ifalemi Tauheluhelu, who Peni described as Lio’s illegitimate son. Peni told the MacPhersons they had no right to be there. He later found out that ‘Ifalemi Tauheluhelu was working with Malcolm at the Oil Depot. A person named Sila[5] told Peni that ‘Ifalemi summoned the occupants of the allotment to a meeting and told them to build brick dwelling houses so that Peni would not be able pay them their values by way of compensation.
  4. Peni testified that apart from ‘Alisita and ‘Epuefi, his father Kiko did not know any of the other defendants. Peni and Kiko spoke every week by phone. A week before his death in 2010, Kiko rang Peni and told him that he was not able to return to Tonga to build and develop their land as they had planned and that he wanted Peni to continue to realize those plans. Peni assured Kiko that he would do so which is what he has been trying to do ever since.
  5. None of the Defendants have ever given Kiko or Peni any gifts for them to live on the allotment.
  6. On 27 October 2020, Peni received a letter from Mr W.C. Edwards SC acting for Sione Ma’u (Lio’s son) in the following terms:
“We represent Sione Kolo Ma’u the heir to the town and tax allotment located at Lavaka’s estate. The tax allotment is currently being occupied by Veapina Ma’u, ‘Epuefi ‘Ofa, ‘Eseta Manu, ‘Apolosi Vaea, Tuineau Latu, ‘Oneola Vailea and Konelia Vaka all family of Sione Kolo Ma’u.
I am told you have come to plough the tax allotment without any right or permission over this allotment.
Please note you are not part of the Ma’u family and you know very well your history and you have come and do [sic] illegal works here in Tonga without any right to the family land here.
Therefore, you are warned and people who have machines and tools to plough this allotment that what you are doing is illegal and you are all trespassers.
A copy of this letter is being sent to the police to stop you and prosecute you for interfering and going around doing things to an allotment you have no ties or right to."
  1. Mr Edwards did not refer to Paulsen LCJ’s 2016 judgment.
  2. Peni wrote letters of demand to the Defendants to move out.[6] He also instructed a lawyer by the name of Senimili Fonua who issud letters of demand, dated 21 August 2021 and 7 March 2022,[7] for the Defendants to vacate to which they did not reply. He also instructed Mrs Vaihu to issue letters demand which also elicited no reply.
  3. During cross-examination, Peni gave the following further evidence.
  4. He emphatically denied that Kiko ever gave Lio permission to put the Defendants on the allotment. Peni went on to describe his uncle Lio in the following terms:
  5. Peni also denied, and said he knew nothing about, the suggestion that Kiko brought some of the Defendants onto the allotment because they were family from Ha’apai, and therefore there was no requirement for money or gifts.
  6. ‘Epuefi told Peni that Kiko told ‘Epuefi that the allotment would go to his son, Peni.
  7. At around the time of the meeting in 2011, Peni told Lio that he had attended to all the paperwork to have his mother registered as the widow and that she would be taking over the allotment. Peni then asked Lio who gave him the right to let the first four Defendants and their families onto the allotment. Lio responded that they were his grandfather’s family. Peni replied that Lio knew that his grandmother did not allow those people to “come home” because she didn’t know them.
  8. Peni spoke with Lio again in 2012 at Ma’ufanga. He asked Lio again what he was doing with the people on the allotment. Lio responded that he couldn’t now tell them to go. Peni told Lio that he put them there, and it was up to him to get them out. That was his last conversation with Lio.
  9. Peni recalled speaking with Kiko on the phone about the Defendants living on the allotment. When Peni mentioned ‘Epuefi, Kiko said “Oh, is he still there?”. He told Peni that he did not give permission to ‘Epuefi to live there; he just felt sorry for him because ‘Epuefi’s father kicked him out, and so he allowed ‘Epuefi to come to the allotment while he was looking for another place.
  10. When asked about ‘Alisita, Peni said that in 1995, Kiko kicked ‘Alisita out and locked up the house before he went back to the USA. When Peni asked Lio about it, Lio told him that he had picked the lock and put ‘Alisita back in the house. According to Peni, ‘Alisita is supposed to be Lio’s son, but Lio never registered him.
  11. Peni accepted that the brick houses built by the Defendants had some value. However, he added that none of them had obtained building permits.

Tevita Mateivakolo Makihele

  1. Tevita Makihele is Peni’s first cousin. He resides at Liahona very close to the subject allotment and works as a farm supervisor at Liahona High School.
  2. Tevita gave the following evidence.
  3. He grew up in the village of Te’ekiu. From about the age of four, he and his family went to the allotment to visit his Aunty Hengalele and sometimes stayed there. He knew that Kiko and Hengalele lived on the allotment in a small wooden house whilst Peni lived and went to school in town with his grandparents and then spent weekends with his parents at the allotment. Peni moved to New Zealand in the 1970’s and therefore Tevita did not get acquainted with him growing up.
  4. In 1978, Kiko and Hengalele migrated to America. Between then and late 2010, Tevita visited the allotment from time to time and noticed that no one was living there and there were no other houses on it besides the little timber house belonging to Kiko and Hengalele.
  5. In 1995/96, Kiko and Hengalele visited from America. Tevita took food to them at the allotment. They were the only occupants there at that time together with one of Peni’s cousins. Kiko and Hengalele returned to America in 1997. There was no one else living at the allotment at that time. In particular, ‘Alisita was not living in the little house.
  6. Sometime between 2008 and 2010, before Kiko died, Tevita saw Tu’ineau Latu and Hamoni Manu (the husband of ‘Eseta Manu) and their families move onto the allotment where they initially built cardboard sheds. From 2011 onwards, they built brick houses.
  7. In late 2010, but before Kiko passed away, Tevita noticed that ‘Alisita Ma’u and his family had moved into Kiko’s house on the allotment. Tevita knew ‘Alisita because he recruited him to work for Tevita’s employer.
  8. Shortly after ‘Alisita moved in, and after Kiko died, ‘Epuefi ‘Ofa moved in with his family and built a small house of cardboard and roofing iron at the corner of the allotment where they are living now. In 2014 or 2015, ‘Epuefi built a brick house on the same site.
  9. Shortly before the meeting in 2011, ‘Epuefi and his wife went to Tevita’s house with some fish for Peni. ‘Epuefi said that he came to live at the allotment because of a direction from Kiko. Peni told him to move out because he had work to do on his land. He added that if ‘Epuefi and ‘Alisita wanted to live at an allotment they had better move to the town allotment at Pea.
  10. Tevita confirmed Peni’s evidence about the meeting in 2011. At that time, Peni’s parents’ house was occupied by ‘Alisita. Tevita accompanied Peni to the meeting with ‘Epuefi and his wife, ‘Alisita and his wife, Hamoni and ‘Eseta Manu and Tu’ineau and his wife. Peni told the attendees the reason for the meeting was that he was coming back, there had been legal work carried out in relation to the land, and that they were to find another place to move to because he was going to do work on his land. Tu’ineau thanked Peni for the time they had been in occupation and then asked to be given until the end of the school year to find another place. The others remained silent. Peni agreed but said that he wanted them all out by December that year.
  11. In around February or March 2012, Peni came to Tonga and convened another meeting with the occupants of the allotment. Tevita again accompanied Peni to the meeting but this time he waited outside. He noticed that Tu’ineau Latu, ‘Alisita and ‘Epuefi’s wife attended. At the end of the meeting, Peni reported to Tevita that the occupants refused to move out and that he would therefore have to engage a lawyer.
  12. After that, Tevita saw that others moved onto the allotment and lived in small huts or sheds made of corrugated iron sheeting and tarpaulins. He did not then know their names. In 2014, he saw that a brick house had been built under the mango tree. During 2015/2016, another two houses were built. The last brick house was built by ‘Apolosi Vaea in 2021.

Sione Tu’ipulotu Napa’a

  1. Sione Napa’a has qualifications in Political Science and is employed in Finance Procurement at the ADB Covid-19 project. He also resides at Liahona next to the subject allotment.
  2. Sione gave the following evidence.
  3. Between 1995 and 1999, while he was still attending high school, Sione recalled Kiko visiting from America. At that time, Sione lived in a brick house with his parents on their tax allotment while Kiko and ‘Alisita lived in a wooden house on Kiko’s allotment.
  4. At some point, items went missing from Sione’s house. Kiko believed that ‘Alisita had taken them. Kiko ordered ‘Alisita out of his allotment. ‘Alisita then moved to the tax allotment of a man by the name of Samiu Kaufusi at the rear of Kiko’s tax allotment. ‘Alisita then got married to a woman by the name of Pina. Sione knows ‘Alisita well as next door neighbours.
  5. Kiko continued living by himself at his house before returning to America. Shortly after Kiko left, ‘Epuefi and his wife moved onto Kiko’s allotment and built a small shed under a mango tree, which is now occupied by a different couple. After some time, Sione saw ‘Epuefi move from under the mango tree and built a brick house at the corner of Kiko’s allotment, alongside Sione’s family house. Sione went to America from 2001 to 2004. When he returned, only ‘Epuefi was living on Kiko’s allotment. Sione believes ‘Epuefi built his brick house during that period or more recently.
  6. Some four or five years later, ‘Alisita moved into Kiko’s house on the allotment. Others moved on after Kiko died in 2010. Most set up sheds initially behind ‘Epuefi’s house.
  7. Around 2011/12, Sione heard from his parents that Peni had come to Tonga and told the Defendants then on the allotment to vacate. Much later, Sione noticed those Defendants starting to build brick houses with the last being completed in the last three years. Sione heard most of the recent brick house construction going on during the Covid-19 lockdowns in 2020/21.
  8. A son of ‘Eseta and Hamoni, by the name of Tu’i, went overseas for fruit picking. A brick house for Tu'i was only built quite recently.
  9. In the same year, Volasinga and Tu’ineau Latu approached Sione to buy a piece of his tax allotment. He declined.
  10. Sione knew Lio as Kiko’s brother but was not acquainted with him. He saw Lio a few times on Kiko’s allotment picking up coconuts. Lio did not have any crops there nor did Sione see any demonstration of authority by Lio over the allotment. However, during Sione’s high school years, he recalled that Kiko, who was still then in Tonga, visited his family. During the visit, Kiko said that he did not want his brother, Lio, having anything to do with the allotment.

Defendants’ evidence

  1. On 14 October 2022, directions were given which required the (active) Defendants to file their briefs of evidence by 13 January 2023. On 20 March 2023, Mr Etika filed briefs for the first four Defendants only. No issue was taken by Mrs Vaihu at the time or prior to the commencement of the trial. However, in her opening remarks, she queried whether, as a result of the partial filing, Mr Etika was still acting for the Fifth, Sixth, Seventh and Ninth Defendants. Mr Etika confirmed that he was, that the Fifth was the Second’s son and so they both relied on ‘Eseta’s brief, that Tu'itupou would therefore not be called, and that briefs of evidence for the other Defendants had not been filed because theirs would have only been a repeat of the First to Fourth Defendants’ evidence.
  2. Apart from being in breach of the Court’s directions, as will be seen below, that assessment by Mr Etika of his instructions, which were the basis for the Statement of Defence, was far from correct. As a result, he was directed to file the remaining briefs of evidence over the course of the second day of the trial (which was adjourned at the end of the first) so that those Defendants would give evidence, subject to any objections by Mrs Vaihu in relation to the late service of those briefs, on day three. Mr Etika filed the remaining briefs and when the trial resumed, Mrs Vaihu was content to proceed.

Veapina Ma’u – First Defendant

  1. On 28 July 2008, Veapina married ‘Alisita Ma’u. ‘Alisita’s real name was ‘Aisea. They had five children. ‘Aisea passed away in 2019.
  2. Veapina’s gave the following evidence.
  3. ‘Aisea was Lio’s illegitimate son, but he was ‘fostered’ by Kiko and Hengalele according to Tongan custom. According to Veapina, Kiko and Hengalele migrated to America in the 1990s.
  4. In 2010, Lio told Veapina and ‘Aisea that Kiko said they could live in the old dwelling on the allotment that used to be occupied by Kiko and his family whilst in Tonga. During cross-examination, she said that Lio told them that Kiko “directed” them to return to the allotment and live in the house. They believed Lio and trusted him and the family ties between him and ‘Aisea and Kiko. So, they agreed to move to the allotment.
  5. Later [year unspecified], they built a small concrete two-bedroom dwelling with verandahs through the assistance of their church. Over the years, they have also maintained the parcel of land allocated to them by Lio, planted fruit trees and decorated it with flowering plants.
  6. While Kiko was living in the United States, he did not once communicate directly with Veapina or ‘Aisea. All communication was through Lio because he had easy access to a phone at his workplace to communicate with Kiko from time to time.
  7. Hengalele occasionally visited Tonga during the period Veapina and ‘Aisea were residing at the allotment, but she stayed with relatives at Liahona each time until she returned to the United States. By the time of Hengalele’s first visit, Veapina and ‘Aisea had built their new dwelling beside the old house at the allotment just beside the main road to Liahona. Veapina stated that Hengalele was “well aware” of it and did not object to their presence at the allotment. She did not explain, and was not asked, about how Hengalele became aware.
  8. Veapina said she was not aware that Peni was Kiko’s heir and that Aisea never mentioned him. In her brief of evidence, Veapina stated that Peni also occasionally visited Tonga from New Zealand while she and ‘Aisea were living at the allotment, but that he too did not object or show any dissatisfaction with them living there. However, during cross-examination, Veapina recounted the 2011 meeting, held in the old house, and confirmed that she and Aisea were present when Peni told them to vacate. She said they refused because that relied on Kiko’s direction through Lio for them to reside on the allotment, and that Aisea said that he would never move from “his father’s” allotment.
  9. Veapina also confirmed her attendance at the 2012 meeting where Peni again told the attendees to vacate. She did not recall any further meetings in or after 2014.
  10. Veapina stated that she and ‘Aisea built their house on the allotment “with no temporary intention but with permanent holdings to be inherited down from us to our children when they grew up” in accordance with, and in reliance upon, the representations made to them by Kiko through Lio. That is, they expected that at some time in the future, the parcel of land they occupy would be given to them to legally hold as their inheritance. During cross-examination, Veapina said that, in 2013, after Peni had told them to vacate the allotment, she and Aisea tore down Kiko’s house, without permission, and used some of the materials to build their own next to that site.
  11. She was surprised when Peni served them with a letter from his lawyer followed by the Writ in these proceedings seeking to evict them from the allotment, “without any consideration for their expenses in building and developing” their parcel of land.

‘Eseta Manu – Second Defendant

  1. Apart from asking for paragraph 11 of her brief of evidence[8] to be ‘cancelled’ (meaning deleted) because it appeared to from someone else’s brief, ‘Eseta, who is 62 years of age, swore that the balance of her brief of evidence was true and correct.
  2. In it, ‘Eseta described how she and her family came to live on the allotment as follows. They moved onto their piece of the allotment in 2006, “with authority from Lio as authorized by Kiko from America”. Her husband was Kiko’s relative from the island of Ha’ano in Ha’apai. At that time, Kiko and his wife Hengalele had migrated to America, but Lio had authority to take care of and control the allotment. All communications between them and Kiko were made through Lio who was employed by an Oil Company at Touliki, Ma’ufanga at the time and had use of the company telephone to make and receive calls from Kiko. The message from Kiko to the relatives that were settled at the allotment [not identified] was that there was no need for any gift of money and that every family was to build “sustainable residences” on their parcels of land “to keep for the future when they would become their inheritance”. They believed what was conveyed to them by Lio, from Kiko, because of their family ties with Kiko. As a result, they moved in and settled at the allotment with the intention of remaining there permanently and “to hold and inherit the land parcel through our children when they grow up”.
  3. In 2007, ‘Eseta built a two-bedroom house with verandas through aid from her church. They also planted fruit trees and a flowering garden.
  4. The Fifth Defendant, Tu’itupou Manu, is her son. He is living on the same parcel of land but in a separate dwelling.
  5. Hengalele occasionally visited Tonga during her lifetime but stayed with her relatives at Liahona. During those visits, ‘Eseta’s brick house had already been built on the side of the old house on the allotment which she and her family first occupied when they moved in. Hengalele was “well aware” of this and had no objections to their presence at the allotment. Her belief in what Lio told her was reinforced when she observed that Hengalele and Peni, when they visited Tonga, did not object to her development or occupation of the allotment. From that, she had a “decent hope” that sometime in the future, Kiko or Peni would give her and her family the parcel of land they are occupying to hold as their own to be inherited by her children.
  6. ‘Eseta was also surprised when, on his recent visit, Peni required them to vacate the allotment “after long years as guardians of our plot of land and developing it expensively and by maintaining its landscape for long years without challenge”.
  7. During cross-examination, ‘Eseta gave the following further evidence.
  8. When asked when she first met Kiko, ‘Eseta said it was in 1979. When it was put to her that Kiko was already then living in the U.S., ‘Eseta changed her answer to 1976, when she “came to school”.
  9. ‘Eseta then volunteered that in August 2006, she obtained Kiko’s phone number from Lio and contacted Kiko direct. She asked Kiko whether he had a piece of land available at his tax allotment, so that she could bring her children over to live in Tonga. Kiko responded that he would contact Lio to “find a piece”. After her birthday (14 July), Kiko rang ‘Eseta and told her he had a piece of land for her. Later in her evidence, she said that she asked Kiko for a piece of land on two occasions and that he asked her to come and live with him at the allotment.
  10. After comparing that evidence to what she had averred to in her brief of evidence, ‘Eseta was asked why she had not referred to this account in her brief of evidence. In response, ‘Eseta said that, after more than 16 years, and after signing her brief of evidence on 20 March 2023, she had only just remembered her telephone conversations with Kiko. She then said that she told Mr Etika about it a week before the trial. Yet, when asked why she did not mention this at the outset of her evidence when she confirmed the truth and accuracy of her brief of evidence (apart from deleting paragraph 11), ‘Eseta said she thought Mr Etika may have confused her evidence with someone else’s.
  11. ‘Eseta continued, in summary:

‘Epuefi ‘Ofa – Third Defendant

  1. By his brief of evidence, ‘Epuefi ‘Ofa gave the following evidence.
  2. Kiko’s father was a brother of ‘Epuefi’s grandmother of the same parents.
  3. Prior to 1993, he resided at Kolonga in Tongatapu. One day [date not specified], he met Lio in Nuku’alofa. Lio told ‘Epuefi to move in and reside at the allotment because it would be close for him to go out fishing. ‘Epuefi then moved onto the allotment and lived in the old house which was occupied by Kiko prior to he and Hengalele moving to America.
  4. In 1994, Lio became upset with ‘Epuefi and told him to vacate the allotment. ‘Epuefi then moved in with a friend at Pea.
  5. In 1998, Kiko visited Tonga and stayed at his town allotment, which was also at Pea. ‘Epuefi heard that Kiko was in Tonga and so he prepared a cooked meal and visited him. Kiko told ‘Epuefi to “return home” and that he would tell Peni that ‘Epuefi would move in to stay at the allotment.
  6. ‘Epuefi moved back to the allotment. About two or three weeks later, Kiko told ‘Epuefi that he had contacted Peni in New Zealand by phone and told him that ‘Epuefi could move in and reside at the allotment.
  7. Kiko also told ‘Epuefi which part of the allotment he was to move onto and that “it will be mine to hold for good”. ‘Epuefi trusted what Kiko told him. The week before Kiko returned to America, for the last time, he and ‘Epuefi went to the allotment where Kiko showed ‘Epuefi the part he was to move to. Kiko marked the boundaries of the parcel of land by planting coconut soot at one corner, a tuitui plant at another, and two fau plants on the other two corners.
  8. ‘Epuefi then started to clean up the lot and built a temporary shelter where he and his wife lived while they continued to maintain the lot and planted fruit trees and flowering plants.
  9. When they moved in, there was nobody living at the allotment. Later [date not specified], Lio brought other occupants onto the allotment as he was authorized by Kiko to be the caretaker of the allotment.[9]
  10. In 2002, ‘Epuefi built a brick dwelling on the parcel of land “given by Kiko” which was 20 feet long by 18 feet wide with surrounding verandas.
  11. In or about 2010, Peni first visited Tonga from New Zealand and stayed with his mother’s relatives at Liahona. ‘Epuefi heard about it and visited Peni with cooked meals where they spoke about the family and how he was acquainted with the families of both Kiko and Hengalele. Peni knew that ‘Epuefi was living at the allotment and acknowledged that Kiko had informed him of the same.
  12. Peni knew of ‘Epuefi’s brick house on the allotment but he made no comment about it or demanded that he vacate the allotment. Similarly, Hengalele also visited Tonga after Kiko passed away and during her life interest in the allotment. She too knew of his presence on the allotment and did not object.
  13. During cross-examination, ‘Epuefi gave the following further evidence.
  14. He never asked Kiko for a piece of land. Kiko told him to occupy the allotment. ‘Epuefi believed Kiko did so because they were related and because Kiko was ‘filled with happiness’.
  15. ‘Epuefi confirmed that ‘Alisita lived in Kiko’s dwelling house on the allotment.
  16. The Mormon Church gave ‘Epuefi a temporary house while he looked for a place. However, ‘Epuefi took parts from that house and used them to build a shed. He lived in the shed for one to two years while he went fishing to save money for bricks. The shed was then dismantled, and those materials were used in the brick house. He commenced construction of the brick house in 1998 and completed it in 2000.
  17. Mrs Vaihu put to ‘Epuefi that when Peni visited in 2011, the brick house had not been built. ‘Epuefi denied that and said that Peni visited him at his brick house, where ‘Epuefi gave Peni fish, and Peni told ‘Epuefi that Kiko had confirmed that he would be living there.
  18. When Mrs Vaihu put to ‘Epuefi that Kiko only permitted him to live on the allotment temporarily until he found a place to move to, ‘Epuefi said he did not know about that, and reiterated that Kiko told him to move onto the allotment and build a brick house so he would not have to tear it down again. When the same proposition was later put to him, ‘Epuefi described it as “a lie”.
  19. ‘Epuefi denied ever participating at the 2011 meeting. He said he was “busy diving and fishing”, although his wife might have attended. He also denied attending any of the meetings called by Peni in 2012 or 2014.
  20. When he was asked whether he ever told Peni that Kiko had given him the land “to own”, ‘Epuefi said “no” and that he just thought Kiko had told Peni. When asked whether he had ever asked Peni to have the land registered in his name, ‘Epuefi said that he was waiting for Peni to “be in a good mood”.
  21. However, ‘Epuefi confirmed receiving a letter of demand from Peni’s lawyer sometime after his brick house was built and he had planted trees. He did not respond to the letter as he was “not moving because [a] lot of money would be wasted”.

Tu’ineau Latu – Fourth Defendant

  1. By his brief of evidence, Tu’ineau Latu gave the following evidence.
  2. Tu’ineau is related to Kiko [not specified]. He migrated from Ha’ano Island in Ha’apai. In 2003, he and his family were taken to the allotment by Lio under direction from Kiko who was living in America. Almost every other family at the allotment was settled there by Lio with permission from Kiko. Lio emphasized to Tu’ineau and all the other families he brought onto the allotment that Kiko did not wish for any money to be gifted to him for the land but that they were to build and develop their respective plots and keep them for their future.
  3. Elsewhere in his brief,[10] Tu’ineau stated that he had “ongoing telephone communications” with Kiko during which they exchanged “greetings, news and other important events from time to time”.
  4. Tu’ineau initially built a temporary shelter on the allotment while he saved money to build “more sustainable and stronger dwellings”. He also planted fruit trees and a flowering garden to decorate the site and has maintained it to date. He did so because he “heavily believed and relied on the representations made to us by Kiko through Lio”. His “belief and trust” was the basis of his expectation that sometime in the future, his parcel would be given for him “to legally hold and to inherit as our inheritance”. His belief and reliance were reinforced when Hengalele and Peni visited Tonga and did not show any dissatisfaction with his occupation or development of the allotment.
  5. Tu’ineau was also surprised when Peni a letter from his lawyer followed by the Writ seeking to expel him from the allotment. He did not respond to the demand as it was “without any consideration about our expenses in building and developing the land”.
  6. During his cross-examination, Tu’ineau gave the following further evidence.
  7. He approached Lio in 2003 and asked if his father had land closer to Liahona on which he could reside. Lio said he would contact his brother, Kiko. Two weeks later, Lio told him that Kiko said “yes” and that he could live behind ‘Epuefi.
  8. It was “maybe 2006” when he built a “stronger house”.
  9. By 2011, there were four houses at the allotment. He was present at the 2011 meeting with his wife, together with ‘Eseta, ‘Epuefi and ‘Alisita. Peni asked them all to vacate so he could do work on his allotment. Tu’ineau denied that he asked Peni to remain until the end of that school semester. Instead, Tu’ineau said that he asked Peni for a chance to continue living on the allotment, but Peni said “no”.
  10. Notwithstanding his earlier written evidence that he had regular telephone calls with Kiko, Tu’ineau confirmed during cross-examination that all contact in relation to the allotment was through Lio, whom he trusted.
  11. During re-examination, Tu’ineau said that Lio was a “very close relative” and that when he arrived from Ha’apai, he believed the allotment belonged to Lio because Lio farmed the allotment. That was why he asked Lio for a piece of the land. Lio told him the allotment belonged to Kiko. He trusted Lio. For that reason, he “never thought to contact Kiko”. Lio also told him that Kiko had no sons.
  12. The first time he knew about Peni as Kiko’s heir was at the 2011 meeting. About a week after the 2011 meeting, Tu’ineau contacted Lio about the meeting and Peni’s demand for them to vacate the allotment. Lio told Tu’ineau not to worry, to just live there peacefully, that he would be “the link” with Peni and that “Peni is not the heir”.

Tu’itupou Manu – Fifth Defendant

  1. Tu’itupou Manu did not give evidence. His position is that of his mother’s, ‘Eseta Manu.

Va’ati Vailea – Sixth Defendant

  1. By his brief of evidence, Va’ati Vailea gave the following evidence in chief.
  2. He is not related to Peni. His wife, ‘Oneola, is Lio’s granddaughter. He and ‘Oneola told Lio about their wish “to get a part of the tax allotment to live on” and Lio directed them to contact Kiko in the United States.
  3. In or about 2009, they spoke with Kiko by phone, who was still in the United States, and asked for part of Lolopaongo to live on and develop. Kiko told them to go and live next to ‘Epuefi on the western side. At that time, only ‘Epuefi and Tu’ineau were living on the allotment. Kiko also told them that the portion “he has shown to us shall be given for his granddaughter”, ‘Oneola, and they could stay on it as their allotment.
  4. The parcel of land was covered with bush and shrubs which Va’ati had to clear before they could build on the land. Construction of their house was completed in 2014 and they moved from Hofoa to live in it.
  5. Between 2010 and 2014:
  6. During his cross-examination, Va’ati gave the following further evidence.
  7. Va’ati knew, from his wife’s mother, that the allotment belonged to Kiko although he was not aware that Kiko had an heir.
  8. When Mrs Vaihu put to Va’ati that no one in Tonga had Kiko’s phone number at the time, he responded that Lio gave them the number and they called Kiko. He then clarified that by saying that it was his wife, ‘Oneola, who rang Kiko but that she put the phone on speaker so he and ‘Oneola’s mother could hear the conversation. During the call, he said, “Kiko pointed out a piece of the allotment for them”.
  9. After their call to Kiko, Va’ati said he spoke with Lio who told him to “hurry up and build a little house to move into”. Lio showed him where to build on the allotment. He regarded Lio as the caretaker of the allotment because Lio had a plantation there.
  10. When Va’ati was referred to the Statement of Defence,[11] where it was pleaded, in summary, that apart from the Eighth Defendant, all others had been brought onto the allotment by either Kiko himself or through his brother Lio with Kiko’s authority, Va’ati said he did not know anything about that and that it was the first he’d heard of it. He then added that he had only seen Mr Etika for the first time the day before he gave evidence. Mr Etika then explained that he had taken instructions for the defence from ‘Oneola but that she was not being called to give evidence. When Va’ati was later asked where ‘Oneola was, he explained that she was sitting outside the court precinct in their car. He did not know why she had not provided a brief of evidence.
  11. When Mrs Vaihu put Peni’s evidence to Va’ati that in 2011, there were only four families living on the allotment, and his was not one of them, Va’ati said that the foundation for his house was already there in 2011. Mrs Vaihu then put Peni’s evidence that the foundation under the mango tree was only there in 2014, to which Va’ati responded that that was their house foundation but that it was laid in 2010, they completed their house in 2013 and moved there in 2014. Later, Va’ati said that construction on his house was completed in 2018.
  12. When he was asked about his evidence that Kiko said the parcel of land was to be registered to his wife, Va’ati said he did not know that women cannot be registered as holders of land in Tonga. When Mrs Vaihu put to him that there was never any discussion with Kiko about registering the parcel, Va’ati said that Kiko told his wife to build a house next to ‘Epuefi, to live there with her children and that the children could have it.
  13. Va’ati said he only heard about Peni trying to evict the other occupants after he completed his house. He later changed that evidence to say that construction of the “last part of his house” was completed in 2017 or 2018. When challenged about his earlier evidence that his house was completed in 2013, Va’ati said that was when the house was “only two bedrooms” and that he went on to extend it between 2014 and 2018.
  14. Later in his evidence, Va’ati said that he heard about Peni coming in 2011 to evict the other occupants. When asked why he did not go to see Peni then, Va’ati said he did not know where Peni lived. Va’ati denied that Peni spoke with him in 2016 and told him to vacate. Va’ati was adamant that the first time he had ever seen Peni was that day in court. However, when asked whether he had spoken with any of the First to Fourth Defendants (or their spouses) between 2011 and 2014 about Peni telling them to leave, Va’ati said that he heard about it in 2014, after being in Vava'u in 2012 and 2013. His concrete slab was laid in 2010. Between then and 2012, he went to the allotment where works were being done by the other occupants. When asked more narrowly whether between 2010 and 2012, the others told him about Peni wanting them off the allotment, Va’ati did not respond. Instead, he said that Lio told him about his court case against Peni in which they were “arguing about the land”. He admitted that in 2014, other occupants told him about Peni wanting them off the land. Va’ati responded by continuing to build on his parcel, up to 2018, extending his house from two to six bedrooms.
  15. Va’ati confirmed that he had not taken any steps to formalise the “gift” of the land or to have it registered before Kiko died. When asked why, he said that “it belonged to someone else” and that he “had to listen and wait for Lio”.
  16. During re-examination, Mr Etika asked Va’ati whether his ‘statement’ was ‘more accurate’ than his wife’s (which was never filed, and she was not called). Va’ati maintained that what he had said in evidence was the truth.

‘Apolosi Vaea – Seventh Defendant

  1. ‘Apolosi Vaea is 72 years of age. By his brief of evidence, which he confirmed under oath, ‘Apolosi gave the following evidence.
  2. He is not related to Peni, but his wife, Otile, was related to Kiko.
  3. He and his wife moved onto the allotment in on or about 2003. Kiko himself took them to the allotment and showed them the location on which to build a temporary shelter, and to later collect materials to build “something strong and permanent so that it cannot be removed”. Kiko told them to clear their parcel and plant fruit and other trees for their family needs.
  4. Shortly after ‘Apolosi moved in, Kiko and Hengalele migrated to the United States. Other families and friends continued to move onto the allotment with Kiko’s permission. Different messages were conveyed by Kiko to every family but what was very clear to everyone was that they were told to build permanent dwellings so they could not be removed and to plant fruit trees as their “parcels would be their future homes and nobody to tell us out of it”. So, they all built better houses as they could afford to.
  5. Even though Kiko never returned from the U.S., ‘Apolosi and the others (“we”) communicated from time to time with him by phone “sending greetings and news about their new settlement at Lolopaongo, newly arrived families, and any important stories to share”. During his lifetime, Kiko was adamant that his “promises to them would never fail”. After he died, his widow, Hengalele, visited Tonga and the occupants of the allotment who “happily welcomed her without any concerns at all about our settlement up to the time she returned”.
  6. Kiko told ‘Apolosi that he had an illegitimate son with Hengalele who was born before they got married but who lived in New Zealand.
  7. Peni first visited Tonga from New Zealand in 2011, after Kiko passed away, and while Hengalele, as Kiko’s widow, was the holder of Lolopaongo. Peni started telling residents to vacate the land, but they took no notice as Hengalele had confirmed to them to “keep to Kiko’s word and stay on happily as assured by Kiko”.
  8. In 2014, after the death of Hengalele, Peni visited Tonga and again told the occupants to vacate the allotment for he had registered it in his name. Again, they did not take notice of his contentions because they did not believe he would be able to inherit Lolopaongo. They also “had faith in the instruction and promises from Kiko, affirmed by Hengalele, that they were to “stay firm” as the land parcels would be their permanent homes which was why they had permanent dwellings. They only learned that Peni had registered the allotment when the summons in this action was served on them.
  9. During cross-examination, ‘Apolosi gave the following further evidence.
  10. In 2003, Kiko gave him permission to move onto the land. When he was referred to paragraph 23 of the Defence, ‘Apolosi agreed that permission was given by Kiko through Lio, but then went on to say that that was incorrect for him because he had direct permission from Kiko before 1978.
  11. When it was put to ‘Apolosi that Kiko migrated to the U.S. in 1978, he agreed. He then said that Kiko came back to Tonga in 1997.
  12. When it was put to ‘Apolosi that Kiko was not in Tonga in 2003, ‘Apolosi said that before Kiko left for the U.S. in 1978, he showed ‘Apolosi where to move onto the land. ‘Apolosi never met Kiko’s father, who was the registered holder of the allotment in 1978.
  13. Between 1978 and 2003, while Kiko and his wife were in U.S., ‘Apolosi and his wife had a further telephone conversation with Kiko about moving onto the allotment. ‘Apolosi had obtained Kiko’s phone number from his wife, Otile, because she was “always in contact with Kiko”. ‘Apolosi confirmed that Otile was available to give evidence. She was not called.
  14. When ‘Apolosi and Otile moved onto the allotment in 2003, Lio was the only one there. Lio came and showed them their parcel. When asked why he waited more than 20 years before moving onto the allotment, ‘Apolosi said he “was travelling”.
  15. ‘Apolosi later said that when he and Otile arrived, Veapina, ‘Epuefi, Tu’ineau and ‘Eseta were already living on the allotment. When it was put to him that in 2011, only those four families were living on the allotment, ‘Apolosi maintained that he was also living there.
  16. He did not attend the 2011 meeting because he was not informed about it as he “was travelling” that time. However, his wife was at the allotment, but he did not know if she attended the meeting.
  17. When it was put to ‘Apolosi that the first time Peni saw him on the allotment was in 2020, and that ‘Apolosi was living in a shed, ‘Apolosi said that Peni “might be telling the truth” if that was when he first saw him, but he had been living there since 2003. After he built his shed in 2003, ‘Apolosi collected materials over the years to build a “big house” because he knew he was not going to leave the allotment. He started building a brick house in 2011 and moved into it in 2012.
  18. Contrary to his written evidence, ‘Apolosi said under questioning that, in 2014, he found out from the Palace office that the allotment was registered in Peni’s name.
  19. When Peni came over in 2020 to tell him to leave, ‘Apolosi was working in the plantation, and his brick house was already built. ‘Apolosi refused to vacate “because of what Kiko told him”.
  20. ‘Apolosi confirmed that he did not take any steps during Kiko’s lifetime to register the land and that he did not have a building permit for the house construction.
  21. In re-examination, ‘Apolosi acknowledged that he did not tell Mr Etika about the 1978 permission when they spoke the day before to prepare ‘Apolosi’s brief of evidence. When asked why then, at the commencement of his evidence, he affirmed his brief as true and correct without mentioning any need to correct it to reflect his additional evidence, ‘Apolosi said “I’m sorry”.

‘Atiata Vaea – Eighth Defendant

  1. ‘Atiata Vaea did not file a defence. Technically, therefore, it is for the Plaintiff to formally prove his claim against ‘Atiata. As there was some evidence that he is ‘Apolosi’s son, I will proceed on the basis that the circumstances by which ‘Atiata came to be residing on the allotment are as per the evidence of his father.

Malcolm MacPherson – Ninth Defendant

  1. Malcolm MacPherson is a Fijian citizen. By his brief of evidence, Malcolm stated as follows.
  2. He is not related to Peni but was close friends with Lio. His wife is also related to Lio. Malcolm learned about the subject allotment from Lio’s son, ‘Ifalemi Ma’u, with whom Malcolm worked at the oil company. At the time, Malcolm was renting at Pahu. He asked ‘Ifalemi to speak to Lio about getting a piece of the land for Malcolm to reside on. Lio always represented to Malcolm that the allotment was his. He was never told by Lio or ‘Ifalemi that the allotment belonged to Kiko or that Kiko was living in the United States. Notwithstanding, Malcolm testified that in 2010, Lio “obtained permission from Kiko” to give Malcolm a portion of the allotment to live on and to “become his inheritance”.
  3. He and his family moved onto the allotment and built a brick dwelling house on their parcel “with the consent of Lio” who told him to stay as long as he liked. He trusted Lio and his son as a close friend and did everything that Lio told him to do. The house was 18 feet by 20 feet in area and was completed in 2011. During construction, he did not receive any objection from anyone or any notice to stop building.
  4. He never met Hengalele although he was told she visited Tonga before she died.
  5. They lived in their house on the site “undisputed” until 2014, when Peni, as the registered holder, gave notice for them to vacate the allotment.
  6. During cross-examination, Malcolm gave the following further evidence.
  7. ‘Ifalemi was the one who told Malcolm that the allotment belonged to Lio. ‘Ifalemi also told him that Lio said he was to build next to ‘Eseta. No boundaries for Malcolm’s parcel of land were set. Malcolm confirmed that he still worked with ‘Ifalemi. ‘Ifalemi was not called to give evidence.
  8. He denied Peni’s evidence that the first he saw Malcolm on the allotment was in 2020 and maintained that he had lived there since 2013. Malcolm was referred to paragraphs 3 and 4 of his brief of evidence in which he stated that he moved onto the allotment in 2010 and paragraph 25 of the Defence by which it was pleaded that he moved there in 2005. He corrected all those to the year 2013 and said that he did not know where the year 2005 came from.
  9. He did not take part in any of the meetings held by Peni.
  10. He believed that Lio passed away in 2015. When it was put to him that Lio died in 2012, that is, before Malcolm moved onto the allotment, he maintained that it was 2015 because he attended Lio's funeral.
  11. During Lio’s lifetime, Malcolm never asked Lio to have his parcel of land registered in his name. When asked whether he intended to stay in Tonga forever, Malcolm said "maybe". When asked whether he was served with a notice to vacate in 2014, Malcolm said that he "thought so".
  12. In relation to the some of the other Defendants, Malcolm said:
  13. When he received letters of demand to vacate the allotment in 2021 and 2022, Malcolm did not try to speak to Peni about the matter. Instead, he spoke to ‘Ifalemi, who told him to “just stay on the land”.

Submissions

  1. Both counsel filed detailed written submissions, which may be summarised as follows.

Plaintiff

  1. Mrs Vaihu characterised the issues for determination as:
  2. Mrs Vaihu then submitted that those questions may be answered as follows:
  3. Before the trial, the Defendants’ Statement of Defence and the briefs of evidence of the first four Defendants alleged that ‘Epuefi was authorized directly by Kiko to live on the allotment as long as he wanted to and that all the other active defendants were authorized by kk via Lio except Malcolm;
  4. However, during the trial, “all active defendants changed their evidence to direct authorization by Kiko”. Changing their defence and briefs renders their evidence unreliable. Further, they all denied any knowledge of Peni as Kiko’s heir and yet most claimed to have been a blood relative.
  5. Mrs Vaihu summarised the Defendants’ evidence and made the following submissions in relation to each.
  6. Veapina Ma’u and her late husband, ‘Aisea (a.k.a. ‘Alisita), lived in Kiko’s house on the allotment before dismantling it to build their own brick house. As the meeting in 2011 took place in Kiko’s house, Veapina and ‘Aisea must have dismantled it and built their new house after the meeting at which Peni told them to leave.
  7. ‘Eseta Manu denied attending the 2011 meeting when she and the other of the first four Defendants were living in sheds. However, Peni’s evidence that she did attend should be accepted. Therefore, ‘Eseta also went on to build her brick house after she had been told by Peni to vacate. ‘Eseta’s son, Tu'itupou (the Fifth Defendant) has not defended the proceedings.
  8. ‘Epuefi ‘Ofa said that, in 1998, he was told personally by Kiko to move onto the allotment. According to Peni, Kiko was not in Tonga in 1998. ‘Epuefi evidence should be approached with care because of his denial to being present at the 2011 meeting his claim that he did not know of Peni. However, Peni accepts that Kiko told him about ‘Epuefi living at the allotment but only on a temporary basis until he found another place to live. As such, ‘Epuefi only had a licence to occupy the allotment which expired upon Kiko’s death in 2010.
  9. Tu’ineau Latu also claimed to have been given permission to move onto the allotment by Lio who claimed to be authorized by Kiko. There is no independent evidence to support Tu’ineau’s claim. Therefore, at best, he only had a licence from Lio who had no authority to grant one because Lio was not an heir. In any event, if Tu’ineau was granted a licence to occupy the allotment by Kiko, it too expired upon Kiko’s passing in 2010. Tu’ineau claimed to have found out about Peni as Kiko’s heir for the first time at the 2011 meeting, during which, according to Peni, Tu’ineau thanked him for being allowed to occupy the allotment and asked if he could stay until the end of the school semester, to which Peni agreed; whereas, Tu’ineau said he asked Peni to give him the land, which Peni refused.
  10. Va’ati Vailea said that he laid the concrete slab for his house in 2010 whereas Peni’s evidence was that it was not there until his visit in 2014, that is, after the meetings in 2011 and 2013 in which he told the attendees to vacate. Va’ati heard about that from the others. Therefore, Va’ati chose to continue to build on his parcel after he knew that Peni was the heir and that he had ordered the occupants to vacate.
  11. ‘Apolosi Vaea’s evidence about when he moved onto the allotment and when he built his brick houses was contradicted by the evidence of Peni and, perhaps more importantly, Malcolm MacPherson. Therefore, ‘Apolosi also chose to build after he knew of Peni and his demand of the Defendants to vacate the allotment.
  12. Malcolm Macpherson moved onto the allotment on the authority of Lio via his son, ‘Ifalemi. Notwithstanding receiving a letter of demand from Peni in 2014 to vacate the allotment, Malcolm remained there because he trusted Lio as “the owner”.
  13. In relation to the pleaded defences of estoppel by acquiescence, Mrs Vaihu cited the decisions in Vai v ‘Uliafu & Anor LA 6/1988 TLR 1989 P58 – 65; Kalaisi v Maile & Ors LA19/2015 and Fohe v Mahe [2022] TOCA 23, and submitted, in summary, that:[12]

Defendants

  1. Mr Etika’s submissions may be summarised as follows.
  2. The active Defendants all have “valid reasons” to be on the allotment. Save for Malcolm MacPherson, who claimed his permission was only to live there as long as he wished, the other Defendants were to keep and develop their allocated lots as “their future inheritance”. The Plaintiff cannot evict them for he is bound by the authority given by Kiko or Lio. For that reason, the Defendants claim estoppel by acquiescence to protect themselves from eviction.
  3. Mr Etika referred to the principles of estoppel by acquiescence (or proprietary estoppel) by reference to the decisions in yn [sic] v Llev Llewelyn[13] (1862) 4 F G & J 517, Ramsdeys [sic][14] v Dyson (1H, 129, w29), Tafolo v Vete (1998) Tonga LR 164 (CA), Ongolea & Finau (2003) Tonga LR 152, Li v Finefeuiaki (2013) Tonga LR 39, Kalaisi v Maile [2016] TOLC 8, Maile v Kalaisi [2017] TOCA 3, Nginingini v Nginingini & Minister of Lands [2018] TOLC 4; [2018] Tonga LR 32 and Tevi v Paea [2021] TOLC 7.
  4. Those principles will be discussed at length further below.
  5. After reciting some of the evidence of the active Defendants and identifying where that conflicted with the evidence adduced by Peni, Mr Etika naturally contended that the Defendants’ evidence should be preferred. He then sought to apply the principles of estoppel by acquiescence in respect of each of the active Defendants as follows.
  6. ‘Epuefi ‘Ofa was brought onto the land by Kiko himself in 1998. Kiko told ‘Epuefi that he was giving him his aunty’s share to have and live there, as a token of remembrance of Kiko’s paternal extended family. Epuefi cleared his lot and built a shed in 1990 and a brick house in 2000. There was an expectation by ‘Epuefi when Kiko told him in 1998 that a portion of the allotment, his Aunty’s share, would be given to him to live on and own. Kiko told ‘Epuefi that he informed Peni about the gift and that Peni had agreed to it. ‘Epuefi’s expectation was further reinforced when Kiko showed him the exact location on the allotment where he was to live. ‘Epuefi built a brick house on the land from 1990 to 2000 without objection to by Kiko or any of his family. During her visits to Tonga prior to Kiko’s death, Hengalele “must have known about the development of the allotment and reported it to Kiko when she returned”. ‘Epuefi lived on the main Road where Hengalele used to go to Liahona to stay with her relatives. ‘Epuefi’s development of the lot could not be hidden from any passerby on the main road. It may be inferred from Kiko’s conduct that he possessed full knowledge of Epuefi’s “cooperation with his directions in 1998” and that ‘Epuefi was therefore “expecting to create some interest in the portion pledged to him by Kiko”. ‘Epuefi’s “agreement to come to the allotment”, his clearing of the thick overgrowth, maintenance and growing of edible fruit trees, and building of a shed and then a brick house is evidence of his reliance on Kiko’s pledge. During that period from 1990 to 2000, ‘Epuefi “struggled financially to get the job done and had to go dive-fishing and sell the catch to generate funds for building materials” and other expenses he had “suffered” which he described as “huge”. ‘Epuefi did all these things, to his detriment, in the expectation and trust that Kiko would at sometime in the future surrender the allocated portion to him. In those circumstances, it would be unconscionable, inequitable or unjust for Kiko to go back on his promise. For those reasons, the permission given by Kiko to ‘Epuefi amounts to more than a mere licence and constitutes a promissory estoppel to protect ‘Epuefi from eviction during his lifetime.
  7. Peni should now be bound by the equity created by his father because:
  8. Va’ati Vailea is not related to Kiko or Peni but his wife, Oneola, is a granddaughter of Lio. Kiko told them to build next to ‘Epuefi on a portion of the land that would be Oneola’s share, meaning to have and to own. Va'ati cleared the lot in 2010 and built a brick house on it which was completed in 2014 without objection from Peni. Even though he saw the concrete foundation for the house, Peni did nothing to find out who owned it. The house was extended and that work was completed in 2018, again without objection from Peni, until letters of demand were issued in 2020. Kiko must have expected that the Vaileas would expend substantial money on maintaining and developing the land and constructing a dwelling house on it. For much the same reasons as submitted in the case of ‘Epuefi, Kiko’s knowledge “would have passed from Kiko to Peni through their casual conversation on the phone from 2009 to 2010 before Kiko died. The Vaileas relied on Kiko’s promise and therefore expected to own their portion. Their expectation was reinforced by their undisputed occupation and developments from 2014 to 2020. In those circumstances, Peni cannot now deny their right to remain on the allotment while he acquiesced in asserting his rights between 2009 and 2020.
  9. ‘Eseta Manu claimed to be related to Kiko. She also claimed and that she telephoned Kiko personally in 2006 and asked him for a piece of land on the allotment to live on. She claimed that Kiko approved her request and told her to build a permanent home on the land. Kiko told Lio to show ‘Eseta where to live on the allotment. Lio did so and ‘Eseta and her son, Tu’itupou, have been living there since. She claims she did so in reliance on Kiko’s words as a gesture of “genuine love for his relatives” and with the expectation that in the future she would own her lot with her children. Kiko knew and was expected to know that permanent structures would be expensive to build and that ‘Eseta would suffer financial sacrifice in doing so. Through his phone calls with his father between 2006 and 2010, Peni “was made aware by Kiko of ‘Eseta’s existence on the allotment and has not done anything to object to it or restrict her tenancy but remained silent about it until 2011 after the death of Kiko to challenge ‘Eseta’s occupation and authority to be on the allotment”. ‘Eseta’s situation is therefore to that of ‘Epuefi. She has established an equity in respect of her portion and is therefore “eligible for protection under estoppel by acquiescence”.
  10. Tu’ineau Latu, Veapina Ma’u and ‘Apolosi Vaea also claimed to be either directly related to Kiko or through their spouses. They too claimed to have been brought onto the allotment with the permission of Kiko conveyed through Lio “as Kiko’s representative or agent in Tonga”. Although they moved in at different times, “it is common ground” that they were given the same directions from Kiko through Lio about the nature of their tenure including to build permanent structures on their plots and maintain them as their future homes. They all relied on the Kiko’s directions and acted on them, by expending considerable money, time and effort, and with an expectation that in the future they would own their plots of land. Thus, the submissions in respect of ‘Epuefi are repeated. Kiko would have told Peni during their weekly calls of his intentions and approval for these Defendants to occupy parts of the allotment and his directions for them to build structures there and maintain each lot as their own. Accordingly, it is submitted that these Defendants too have “established equity” over their respective lots and are entitled to protection against eviction under the doctrine of estoppel by acquiescence.
  11. Malcolm Macpherson was brought onto the allotment in 2010 through permission from his workmate, ‘Ifalemi, a son of Lio, who told Malcolm that Lio owned the allotment referred to as “Lolopaongo” here, and he (Malcolm) could have a piece to move there and quit renting. The evidence is not clear whether Kiko was still alive at the time Lio showed Malcolm his lot. “Mr Macpherson’s position is sad because he was misled to think that Lolopaongo is owned by Lio and that it is a family property, of ‘Ifalemi Ma’u, Lio’s son.” Lio told Malcolm he would take the matter up with Peni because Peni is not the heir to the allotment. After Malcom’s viva voce evidence, it is conceded that he “cannot come under the umbrella of the Defendants Tu’ineau Latu, ‘Apolosi Vaea and Veapina Ma’u as he has fallen short of establishing equity”.

Consideration

  1. There has been no challenge, in this action, to the validity of Peni’s registration, as Kiko’s heir, and as the holder of the subject tax allotment. Therefore, subject to any estoppel, Peni is entitled to vacant possession of the allotment: Finau v Minister of Lands [2012] TOLC 1.
  2. It is common ground that Peni did not give permission to any of the Defendants to occupy the allotment. Since 2011, he has demanded that they (initially the first four Defendants and the others over subsequent years) vacate the allotment. They refused. He commenced these proceedings for eviction. The Defendants have denied his claim. Prima facie therefore, and subject to any lawful justification or right recognised by law they may hold, the Defendants are liable to be evicted as trespassers: Manu v 'Aholelei [2015] TOLC 5; Sunia v Kava [2020] TOLC 2.
  3. In that latter regard, and despite some imprecision and opacity in their pleading, the Defendants rely on the doctrine of estoppel by acquiescence as the basis for resisting Peni’s claim for possession of the allotment and justification for their continued occupation of the allotment.
  4. The Defendants have not pleaded in aid s. 103 of the Evidence Act.[15] Thus, Mr Etika’s reliance on the requirements for an estoppel of that kind as distilled by Paulsen LCJ in Kalaisi v Maile [2016] TOLC 8 at [90] are not directly apposite.
  5. No (counter)claims have been made by the Defendants herein seeking to enforce any alleged representation by Kiko and/or expectation on the part of the Defendants that their respective lot would be theirs to own, meaning (presumably), subdivision, surrender and/or registration in their names, in accordance with the cases following Dillwyn v Llewelyn (1862) 4 De G F & J 517 where it was held that equity binds the donor of property where, after the making of an imperfect gift, the donor induces the donee to act on the assumption that the imperfect gift was effective or in the expectation that it will be made effective: cf Maile v Kalaisi [2017] TOCA 3 at [23].
  6. The issue here then is not ownership, but a right to reside; that is, not whether equitable ownership exists (which is excluded by s.6 of the Land Act), but whether the Defendants’ possession or licence to occupy is protected, and whether Peni is estopped from frustrating it: Fohe v Mahe [2022] TOCA 23, [16].

Legal principles

  1. Equity will recognise and enforce a right to occupy and use property where the person in occupation has acted in reliance upon the representation or the acquiescence of the person having a proprietary interest in the land: Ongolea v Finau [2003] Tonga LR 147.
  2. Estoppel by acquiescence or proprietary estoppel, as it is sometimes called, is to be distinguished from estoppel under s103 of the Evidence Act which may be seen as an evidential rule that prevents a person denying what he or she has by words or conduct asserted. In contrast, estoppel by acquiescence is a means by which property rights may be affected or created. It has been recognised and applied in a number of Tongan cases.[16]
  3. The doctrine gives the Court a wide discretion to grant relief when an owner of land:
  4. The cases recognise a principle that where a person is encouraged by the true owner to occupy and improve land in the mistaken expectation that he is or will be the owner or have a particular interest in the land, and the true owner being aware of that mistake does nothing to correct it, equity shall, as far as it can, prevent the true owner from profiting from that mistake and may require the true owner to fulfil the other party’s expectation: Ongolea v Finau, ibid, at [100], [101].[17]
  5. Therefore, 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 owner 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: Inwards v Baker [1965] 2 QB 29; [1965] 1 All ER 446.[18]
  6. Fundamentally, the equity is created by the unconscionable conduct of the true owner. Therefore, 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. Whether one uses the word ‘fraud’ or not, the claimant (Defendants here) has to establish, as a fact, that the possessor of the legal right (Plaintiff here), by setting up his right, is taking advantage of him in a way which is unconscionable, inequitable or unjust. The elements or requisites necessary to constitute fraud or conduct of that kind are:[19]
  7. In Kalaisi v Maile [2016] TOLC 8, Paulsen LCJ formulated, from the authorities, the following non-exhaustive list of elements or factors required to prove an estoppel of this kind:[20]
  8. The term ‘acquiescence’ is not a term of art. It is a well-known doctrine of equity that when a person claiming equitable relief has lain by for a long time, and so conducted himself that it would be inequitable to permit him to complain of the Defendant's actions, the Court will refuse to grant the relief. Acquiescence in the strict sense implies either that the party acquiescing has abandoned his right, or that he is estopped by his conduct from asserting it. Acquiescence in this sense is no more than an instance of estoppel by words or conduct. Tevi v Paea [2021] TOLC 7.[21] A Defendant wishing to make good the defence of laches or acquiescence must rely on the behaviour of the Plaintiff, not of his predecessors in title: Nwakobi v Nzekwu [1964] 1 WLR 1019 at 1024.
  9. An estoppel in this context does not confer any equitable estate on an occupier but can create a personal restriction on a landholder from obtaining an order to evict the occupier, for a period which will depend on the particular facts of the case: Fohe v Mahe [2022] TOCA 23.[22] A person seeking to resist an eviction application based on an estoppel “acquires no rights in land of any description and neither do [their] heirs”. The only effect of the estoppel is to impose a personal restriction on the land holder from obtaining an eviction order during the occupier’s life tenancy. What happens on their death or on termination of the life interest remains for future consideration: Matavalea v Uata [1989] TLR 101 at [103].
  10. Recently in Fohe v Mahe, ibid, the Court of Appeal held that for a third party to be bound by an equity: [23]
  11. Knowledge in this context includes actual knowledge but also knowledge that would have been acquired but for the shutting of one’s eyes to the obvious or wilfully and recklessly failing to make such enquiries as a reasonable and honest person would make. In such a case, the equity that binds the third party is not derivative but operates directly against the third party.

Evidence generally

  1. Before embarking upon an analysis of the issues in respect of each Defendant, it is necessary to make the following observations on the evidence generally.
  2. One of the obvious challenges for the parties and now, the court, is that Kiko, Hengalele and Lio, and to a lesser extent, ‘Alisita (Aisea) Ma’u and Hamoni Manu, are all deceased. It is of some surprise, that according to the evidence before the Court, not one of them ever reduced any of their communications or statements of position relevant to the issues in this case to writing. It is perhaps more surprising that none of the Defendants ever sought written confirmation from Kiko during his lifetime of their permission to reside on the allotment or any greater interest or promise such as future “ownership”. All that has been asserted on their behalf is hearsay, which in the ordinary case, would be inadmissible unless it falls within any of the exceptions provided by s 89 of the Evidence Act.[24] Although this Court has traditionally recognised that land cases constitute something of an exception to the hearsay rule,[25] prudence requires that this category of evidence be approached with caution. That is particularly necessary in a case such as the present, where the common and fundamental substratum to the Defendants’ cases is what Kiko and Lio are said to have done decades ago. Acceptance of that evidence, or otherwise, must depend on an assessment of the credibility and reliability of the accounts of those who asserted conversations with Kiko, Lio or both and by reference to any other objective evidence or reasonably available inferences.
  3. Almost all the evidence given or called by Peni was unchallenged during cross-examination and none of it was damaged. I found Peni to be a frank and forthright witness who gave clear and measured evidence despite at times venting some frustration at the situation and some of the propositions put to him. Tevita Makihele corroborated Peni’s evidence particularly in relation to the 2011 meeting. He struck me as an honest witness who did his best to recall events from many years ago. I found Sione Napa’a to be a particularly impressive witness. His high education reflected a sound memory. As he is not related to Peni but has lived next door to the subject allotment for many years, Sione’s evidence particularly in relation to when each of the Defendants moved onto the allotment and when they built their houses was, in my assessment, the most objective and reliable evidence on those issues.
  4. By comparison, I generally found the material evidence of most of the Defendants unsatisfactory and unreliable. At its best, it was vague and unconvincing. At its worst, significant portions of a number of the Defendants’ evidence were inconsistent with the pleaded Defence, internally inconsistent with their briefs of evidence and inconsistent between each other. For example:
  5. For those reasons, and subject to specific findings in respect of each Defendant’s claim which follow, wherever it conflicted on a material and common issue, I have preferred the Plaintiffs' evidence over that of the Defendants.

Factual findings

  1. The above recital of the pleadings, evidence, submissions and applicable legal principles against a backdrop of diametrically opposed cases on the critical issues requires findings on the facts in relation to the following.

Whether, during his lifetime, Kiko gave permission for each Defendant to live on the allotment permanently?

  1. I do not accept that, during his lifetime, Kiko gave permission to any of the Defendants to live on the allotment permanently.
  2. Because of the unreliability of their evidence as described above, I am unable to accept on the balance of probabilities the evidence of ‘Eseta (which was materially changed during cross-examination), Va’ati (who did not give instructions for the Defence while his wife, who did, was not called) and ‘Apolosi (also dramatically changed during cross-examination) that Kiko directly gave him permission to move onto the allotment. I consider it far more likely (as ‘Eseta originally averred and ‘Apolosi conceded) that they, like Veapina, Tu’ineau and Malcolm, were brought on by Lio (or his son). I accept Peni’s evidence that, apart from ‘Epuefi, his father Kiko never mentioned anything to him during their regular telephone calls until Kiko’s passing in 2010 about letting any of the other Defendants onto the allotment to live. I find it inherently implausible that Kiko would do so without telling Peni, particularly in the face of Peni’s unchallenged evidence that Kiko had plans to do work on the allotment and wanted Peni to continue to effect those plans which, by these proceedings, he is endeavouring to do.
  3. I am also fortified in that finding by the evidence of Sione Napa’a, which I accept, that as at Kiko’s death, only ‘Alisita (and Veapina) and ‘Epuefi were living on the allotment. And, according to Peni, whose evidence I also accept, as at the 2011 meeting, only those two families and those of ‘Eseta and Tu’ineau were living on the allotment. It follows, therefore, that all the Defendants other than Veapina and ‘Epuefi moved onto the allotment after Kiko’s death, in which case, he could not have given any permission (including to Lio) for them to do so.
  4. I accept ‘Epuefi’s evidence that Kiko brought him onto the allotment, but I prefer Peni’s evidence that Kiko only permitted ‘Epuefi to live on the allotment temporarily while he looked for another place. That is also consistent with Peni’s unchallenged evidence that during one of his last calls with Kiko, he mentioned 'Epuefi to which Kiko responded “Oh, is he still there?” as well as ‘Epuefi’s own evidence that the Mormon church gave him him a temporary house while he looked for a place.
  5. Upon that finding alone, all the defences must fail. However, for completeness, and in case the above finding is considered elsewhere to be wrong, it is desirable to continue the analysis of the other issues.

Whether Lio was authorised by Kiko to bring any of the Defendants onto the allotment?

  1. For the reasons which follow, I do not accept that Lio was authorised by Kiko to bring any of the Defendants onto the allotment:

shows the depths to which Lio and his sons were prepared to perpetuate the lie that the allotment belonged to them.

  1. Accordingly, any grievance felt by the Defendants at this point in the analysis is the product of, and must be directed at, Lio’s deception.

Whether Kiko also represented to each Defendant that if they lived on the allotment and maintained and developed it, including by building brick houses, they could expect at some future time to ‘own’ their lot forever?

  1. If I am wrong about those findings so far, and if it be accepted that Kiko directly permitted ‘Epuefi, ‘Eseta, Va’ati and ‘Apolosi to reside on the allotment and/or Lio was authorised by Kiko to bring the other Defendants (save for Malcolm) onto the allotment, then I am not satisfied on the evidence that Kiko represented to, or encouraged any of, the Defendants that if they came to live on the allotment and developed it by building brick or permanent houses and planting trees, that they could expect to own their lots at some point in the future.
  2. The evidence of those Defendants who claimed that Kiko told them to build permanent houses and that the land would be theirs did not actually appear in their briefs of evidence. To the extent that the proposition could be construed as appearing in their written statements, it was undermined during their inconsistent and unreliable evidence at trial. As such, I find that there was no reliable evidence that at the time Kiko was alleged to have given them permission to move onto the allotment (which I have found was not the case) he also made representations or encouraged them to believe that if they did so and built permanent houses, they would at some point in the future have their parcel of land registered as their own. During the trial, it became clear that the notion was an afterthought. Otherwise, for the Defendants who were brought onto the allotment by Lio, I am prepared to accept that it was he who told them to build permanent houses. However, for the reasons given above, Lio was not authorised to give that direction or make such representations on behalf of Kiko.
  3. However, there is a far more compelling reason to reject this part of the Defendants’ claims. If Kiko had made the representations as alleged, he would effectively have been giving away portions of his allotment which he knew would be inherited by his son, Peni. It is inconceivable, in my view, that Kiko would have done so without any consultation or communication with Peni on the matter. In that regard, I accept Peni’s evidence that, with the exception of ‘Epuefi, his father never mentioned any of the other Defendants or that he had permitted them either directly or through Lio to take up residence on the allotment or to build permanent homes there or that their parcels would one day be theirs. I also note there was no evidence that Kiko told Hengalele that he was effectively giving the allotment away to the Defendants.
  4. As observed above, it is a striking feature of the Defendants’ case that none of them sought or obtained any written confirmation from Kiko during his lifetime of their permission to reside on the allotment or any of the representations or promises he was alleged to have made. Moreover, if the allegations were true, then it beggars belief that over the years prior to his passing, none of the Defendants took any steps to crystallise or formalise Kiko’s alleged oral promises, by way of, for example, having him surrender the relevant area of the allotment, having it subdivided, and then registered in each relevant Defendants’ name. That they instead sat quietly and did not take any such action suggests opportunism and a sadly misguided faith in Lio's word.
  5. Further, after carefully considering each of the Defendants’ briefs of evidence, and their evidence during cross-examination, I am satisfied, on the balance of probabilities, that each of them assumed or developed a belief based on what Lio told them: that if they built brick houses and developed their lots, they could not later be removed from the allotment. They acted upon that mistaken belief, not anything Kiko told them.
  6. The effect of those findings is that if Kiko ever gave the Defendants permission to reside on the allotment (which as I have found above was not the case), then that permission was a mere licence, and did not give rise to any equity. As such, the Defendants' licences terminated upon Kiko’s death in 2010: Manu v Tauheluhelu [2002] TOLC 2; To'a v Taumoepeau [2015] TOLC 4.

Whether the Defendants relied on any such representation by Kiko and thereby acted to their detriment?

  1. It follows from the last finding that the answer to this question is ‘no’. On the evidence I have accepted, the only representations upon which any of the Defendants could have relied in their decisions to expend time, effort and money in constructing brick houses and other developments on their lots were by Lio.
  2. As noted above, it is astounding that none of the Defendants ever sought written confirmation from Kiko of what Lio was telling them. That may be explained by the fact that what he told them was very beneficial for them. It is also tends to explain why Lio told the Defendants that Kiko did not require any gifts or money for the land because they were related. It is likely, in my view, that Lio did so because if the Defendants had, in the usual Tongan custom, presented Kiko with gifts, Kiko would have asked them why and thereupon have found out what Lio was up to.
  3. In relying on Lio, without confirmation from Kiko, the Defendants took a misinformed and ill-advised risk that they could remain on the allotment indefinitely and in deciding to invest time, effort and money in constructing brick houses and other developments on their lots. None of that was the result of any act or omission on the part of Kiko.
  4. Further, in relation to the issue of detriment, it ought be observed that while the Defendants expended resources in building houses on their lots, they have, through Lio’s deception, been living on the allotment rent free for years. Further, the common law cases involving similar investments on real property viewed detriment through the prism of fixtures and improvements to land such as houses as immovable and therefore running with the land. In Tonga, houses remain viewed at law as personalty, rather that accreting to the land and thus forming part of the realty: e.g. Mahe v Mahe [2020] TOSC 14.[27]

Whether Kiko knew the Defendants so acted?

  1. There is no evidence that, prior to his death, Kiko had actual knowledge of any of the Defendants who were then residing on the allotment having built permanent or brick houses or otherwise having expended time, effort and money on their lots.
  2. It is reasonable to infer that if Kiko knew of the Defendants and their developments on the allotment, he would have told Hengalele and Peni about it. Apart from ‘Epuefi, there is no reliable evidence that either Hengalele or Peni knew about the other Defendants prior to Peni’s visit in 2011, when only the first four Defendants and their families were residing at the allotment. Ergo, it is reasonable to infer that Kiko had no knowledge of the other Defendants being on the allotment prior to his death and he only knew that ‘Epuefi was to be there temporarily.
  3. Further, as stated above, I have preferred the evidence of Peni, Sione Napa’a, Tevita Makihele and Malcolm MacPherson in relation to when the Defendants built their brick houses. By synthesis of their collective evidence, I find it more likely than not that all the Defendants built their brick houses after Kiko’s death.
  4. A number of the Defendants asserted that Hengalele was “aware” of their presence on the allotment and their houses. There was no independent evidence that Hengalele visited the allotment during any of her visits to Tonga between 2010 and when she passed in 2013 or that she was aware of the Defendants who were on the allotment then or their houses. There was evidence that during her visits, Hengalele stayed with family in Liahona. The submission that she must have seen the houses when driving to Liahona was mere surmise. The only witness who suggested that Hengalele visited the allotment or was aware of the Defendants’ “settlement” was ‘Apolosi. For the reasons stated above and below, ‘Apolosi was one of the least reliable witnesses in the case, and I have not accepted his evidence.

Whether by permitting the Defendants to remain on the allotment up to his death, or not taking any action to have them removed, Kiko acquiesced in asserting his rights?

  1. As I have found that Kiko had no knowledge of the presence of the Defendants, other than ‘Epuefi, it follows that Kiko had no knowledge of any adverse possession by any of the Defendants or that his rights in respect of the allotment were being affected. Therefore, there was no reason for him to assert them.
  2. Further, on the finding that Kiko only gave ‘Epuefi permission to reside on the allotment until he found another place to live, that is, a temporary licence, it was reasonable for Kiko to assume that ‘Epuefi had done so and was no longer living on the allotment. As noted above, there was no evidence until shortly before his death that Kiko knew that ‘Epuefi had not left the allotment but had gone on to build a brick house there. In doing so, without Kiko’s permission, ‘Epuefi breached his licence. Until Peni mentioned to Kiko that ‘Epuefi was still living on the allotment during one of their last calls before Kiko’s death, Kiko had no basis for asserting his right to evict ‘Epuefi.
  3. Accordingly, I find that Kiko did not acquiesce in asserting his rights and there was no known basis for him doing so.

Whether Peni acquired his interest in the allotment with knowledge of the circumstances giving rise to the Defendants’ claimed equity?

  1. With the exception of ‘Epuefi, Peni had no knowledge of the other three (of the first four) Defendants and their families living on the allotment until he visited in 2011 to arrange for the registration of his mother’s widow’s estate in the allotment. Even though Peni was not then eligible to inherit the allotment, he still conveyed his father’s wishes to carry out the work on the allotment they had planned and demanded that the first four Defendants vacate the allotment. Peni was told by ‘Alisita, Hamoni and Tu’ineau that they had been brought onto the allotment by Lio. Peni challenged that and told them to leave. He also challenged Lio about what he had done. Lio did not try to defend his actions on the asserted basis that he had Kiko’s authority to do so.
  2. Peni knew of ‘Epuefi’s original permission to reside on the allotment but only on a temporary basis. He did not know that ‘Epuefi had remained on the allotment for over 12 years until he heard about him prior to the 2011 meeting.
  3. By 2014, when Peni acquired his legal interest in the allotment by registration as Lio’s heir, he was aware that the first four Defendants and their families were still living on the allotment. He was aware that a concrete slab had been laid under a mango tree but was not able to find out that it belonged to Va’ati until 2016.
  4. Over the years following the 2011 meeting, Peni regularly repeated his demands for those Defendants and those who followed such as Va’ati, ‘Apolosi and Malcolm to vacate the allotment. They ignored his demands on Lio’s advice to remain on the allotment and that he would deal with Peni who Lio contended was not the heir.
  5. Importantly, while ‘Alisita, Hamoni and Tu’ineau explained that Lio had brought them onto the allotment, there is no evidence that they, ‘Epuefi, or any subsequent Defendant ever informed Peni that Kiko, either directly or through Lio, had told them to build permanent houses on their lots or that one day those lots would belong to them.
  6. Therefore, I find that in 2014, when he acquired his interest in the allotment, Peni had knowledge of the circumstances or claimed basis for occupation by the Defendants who were then residing on the allotment, and which he unequivocally disputed, but that he never had knowledge of any alleged representation or promise to them by Kiko which could give rise to a claimed equity in the land.

Whether Peni acquiesced in asserting his rights to possession of the allotment?

  1. Peni asserted his rights as Kiko’s heir as soon as he became aware of the presence of the first four Defendants in 2011. Until he became registered in 2014, he could not take legal action to evict them or any other Defendant who came onto the land without Peni’s permission thereafter. Notwithstanding, Peni consistently repeated his demands for the Defendants to vacate the allotment, which they ignored.
  2. Further, upon my acceptance of Peni’s evidence, I find that:
  3. In those circumstances, I am satisfied that Peni took all reasonable action and did not acquiesce in asserting his rights to possession of the allotment. Any criticism for not commencing legal action earlier lies at the feet of the lawyers Peni engaged but who failed to do so.

Whether the Defendants acted to their detriment by building ‘permanent’ houses before or after Peni demanded that they vacate the allotment?

  1. All Defendants were aware that Peni was asserting his legal rights to the allotment. In forlorn reliance once again upon Lio and his advice, the Defendants ignored Peni’s demands. I have found that, on the balance of probabilities, all the Defendants built their brick houses after Kiko’s death. By the same evidence, I also find that all the Defendants built their brick houses after being told, directly or indirectly, by Peni to vacate the allotment, and therefore did so to their own detriment by relying on Lio’s erroneous advice and not by reason of any act or omission by Kiko or Peni.

Whether, in all the circumstances, it would be it would be unconscionable, inequitable or unjust for Peni to assert his legal right to vacant possession of the allotment?

  1. In the circumstances, so found, I find that it is not unconscionable, inequitable or unjust for Peni to assert his legal right to vacant possession of the allotment.

Application of findings to each Defendant

  1. Even though the pleaded Defence presented something of a collective front, the Defendants in fact ran seven[28] separate cases at trial. At the risk of some repetition, but for the sake of clarity and in acknowledgment of those separate cases and the grave but unavoidable consequences of the above findings, I will conclude with a concise application of those findings to each of the Defendants.

Veapina Ma’u – First Defendant

  1. Veapina and ‘Aisea (‘Alisita), who was Lio’s son, were brought onto the allotment by Lio. Lio had no authority from Kiko to do so. Therefore, Veapina and ‘Aisea had no valid right to move onto the allotment. They lived in Kiko’s house without his knowledge or consent. Kiko did not make any promissory representation to them, or otherwise encourage them to act to their detriment, which could give rise to an equity in the land they occupy. As Kiko did not know of their occupation prior to his death, there was no basis for Kiko asserting his rights. Therefore, Kiko could not acquiesce in asserting his rights. Alternatively, any licence they received from or derived through Kiko terminated upon his death in 2010. They refused to vacate the allotment when demanded by Peni in 2011. ‘Aisea’s declaration (according to Veapina) that he would never move from “his father’s” allotment betrayed his erroneous belief that the allotment belonged to Lio. Veapina and ‘Aisea dismantled Kiko’s house, without his knowledge or consent, and used it to build a brick house. They did so after Peni repeatedly asserted his rights from 2011 as heir to be, after his registration in 2014 and since. Peni did not acquiesce in asserting his rights. Veapina and ‘Aisea ignored Peni demands, and instead relied on Lio’s erroneous advice, to their detriment. Veapina and ‘Aisea have no right to remain on the allotment. In those circumstances, it is not unconscionable for Peni to assert his legal right to vacant possession of the allotment.

‘Eseta Manu– Second Defendant

  1. ‘Eseta’s dramatic change of evidence about the circumstances by which she came to reside on the allotment from that stated in her brief of evidence to the account she gave in cross-examination, made her evidence wholly unreliable. In my assessment, her changed evidence was not a product of recent recollection but rather recent invention. I find therefore that ‘Eseta and her family were also brought onto the allotment by Lio. Lio had no authority from Kiko to do so. Therefore, ‘Eseta and her family had no valid right to move onto the allotment. They lived there in a shed without Kiko’s knowledge or consent. Kiko did not make any promissory representation to them, or otherwise encourage them to act to their detriment, which could give rise to an equity in the land they occupy. As Kiko did not know of their occupation prior to his death, there was no basis for Kiko asserting his rights. Therefore, Kiko could not acquiesce in asserting his rights. Alternatively, any licence they received from or derived through Kiko terminated upon his death in 2010. They refused to vacate the allotment when demanded by Peni in 2011. I am satisfied, on the balance of probabilities, that the brick houses on ‘Eseta’s lot were built after Peni repeatedly asserted his rights from 2011 as heir to be, after his registration in 2014 and since. Peni did not acquiesce in asserting his rights. ‘Eseta ignored Peni demands, and instead relied on Lio’s erroneous advice, to her detriment. ‘Eseta and her family have no right to remain on the allotment. In those circumstances, it is not unconscionable for Peni to assert his legal right to vacant possession of the allotment.

‘Epuefi ‘Ofa – Third Defendant

  1. ‘Epuefi claimed that Kiko brought him onto the allotment in 1998. I accept Peni’s evidence that Kiko returned to the U.S., for the last time in 1997. Notwithstanding, I also accept Peni’s evidence that Kiko only gave ‘Epuefi permission, that is, a licence, to reside on the allotment on a temporary basis while he looked for another place to live. ‘Epuefi did not do so. Instead, he remained on the allotment and eventually built a brick house on the lot he occupies. In doing so, ‘Epuefi unconscionably exploited Kiko’s generosity, took advantage of Kiko’s absence from Tonga and breached the terms of his licence. Kiko had no knowledge of ‘Epuefi overstaying on the allotment until shortly before his death when Peni found out. Kiko did not make any promissory representation to ‘Epuefi, or otherwise encourage him to act to his detriment as claimed, which could give rise to an equity in the land he occupies. As Kiko did not know of ‘Epuefi’s occupation until shortly prior to his death, there was no basis for Kiko to assert his rights. Therefore, Kiko did not acquiesce in asserting his rights. Alternatively, any licence ‘Epuefi received from Kiko terminated well before and certainly upon his death in 2010. I find that ‘Epuefi attended the 2011 meeting. His denial of that eroded the reliability of his other evidence. ‘Epuefi refused to vacate the allotment when demanded by Peni in 2011. I am satisfied, on the balance of probabilities, that ‘Epuefi built his brick house after Peni repeatedly asserted his rights from 2011 as heir to be, after his registration in 2014 and since. Peni did not acquiesce in asserting his rights. ‘Epuefi ignored Peni’s demands, and instead relied on Lio’s erroneous advice, to his detriment. ‘Epuefi and his family have no right to remain on the allotment. In those circumstances, it is not unconscionable for Peni to assert his legal right to vacant possession of the allotment.

Tu’ineau Latu – Fourth Defendant

  1. Tu’ineau was brought onto the allotment by Lio. Lio had no authority from Kiko to do so. Therefore, Tu’ineau and his family had no valid right to move onto the allotment. Kiko did not make any promissory representation to Tu’ineau, or otherwise encourage him to act to his detriment, which could give rise to an equity in the lot he occupies. In that regard, I note Tu’ineau’s evidence that he was in regular telephone contact with Kiko. I accept Peni’s unchallenged evidence that no one in Tonga had Kiko’s phone number. I therefore do not accept Tu’ineau’s evidence of the phone calls with Kiko. Further, and in any event, nowhere in his evidence did Tu’ineau ever suggest that he ever discussed his occupation of the allotment or construction of any houses with Kiko during those purported calls. I therefore find that Kiko did not know of Tu’ineau’s occupation prior to his death. Therefore, there was no basis for, and Kiko could not have acquiesced in, asserting his rights as against Tu’ineau. Alternatively, any licence Tu’ineau received from or derived through Kiko terminated upon his death in 2010. I accept that during the 2011 meeting, Tu’ineau thanked Peni for being able to live on the allotment to that point and asked to be able to stay until the end of the school semester. That, in my view, was tantamount to an admission by Tu’ineau that he knew Lio did not have authority from Kiko to permit him to live on the allotment or that Kiko had made any promissory representation or promise to him. Despite Peni agreeing to Tu’ineau’s request, Tu’ineau refused to vacate the allotment after the end of the 2011 school year. I find that Tu’ineau built his brick house after Peni repeatedly asserted his rights from 2011 as heir to be, after his registration in 2014 and since. Peni did not acquiesce in asserting his rights. Tu’ineau ignored Peni demands, and instead relied on Lio’s erroneous advice, to his detriment. Tu’ineau and his family have no right to remain on the allotment. In those circumstances, it is not unconscionable for Peni to assert his legal right to vacant possession of the allotment.

Tu’itupou Manu – Fifth Defendants

  1. The analysis in respect of Tu’itupou Manu is the same as for his mother, ‘Eseta Manu. Tu’itupou has no right to remain on the allotment.

Va’ati Vailea – Sixth Defendant

  1. I have not accepted Va’ati’s evidence that Kiko gave him and his wife, ‘Oneola, their lot, during a telephone call with Kiko or that the lot was to belong to ‘Oneola as her “share”. ‘Oneola is Lio’s granddaughter and, as a woman, she is unable to become a registered holder of land in Tonga in her own right. Neither ‘Oneola or her mother were called to give evidence about the asserted phone call. Their absence supports an inference that their evidence would not have supported Va’ati. His claim was not referred to with any specificity in the Defence and was only raised during the trial when his brief of evidence was filed late. Va’ati’s demeanour during the trial also detracted from the credibility of his evidence. He stood with his arms crossed throughout, was overly defensive in his answers and often evasive. I find therefore that Va’ati and his family were also brought onto the allotment by Lio. Lio had no authority from Kiko to do so. Therefore, Va’ati and his family had no valid right to move onto the allotment. Kiko did not make any promissory representation to Va’ati or otherwise encourage him to act to his detriment which could give rise to an equity in the lot he occupies. I find that Va’ati and his family moved onto the allotment after Kiko’s death in 2010. Therefore, there was no basis for, and Kiko could not have acquiesced in, asserting his rights as against Va’ati. Alternatively, any licence Va’ati received from or derived through Kiko terminated upon his death in 2010. It is more likely than not, in my view, that before he built his brick house, Va’ati knew, from the other Defendants who were on the allotment, about Peni, that Peni was Kiko’s heir and that Peni had, since 2011, repeatedly demanded vacant possession of the allotment. Later, Peni directly demanded that Va’ati vacate the allotment. Despite that, Va’ati refused to do so and continued building and extending his brick house. Peni did not acquiesce in asserting his rights as against Va’ati. Like many of the others, Va’ati betrayed a misplaced trust in Lio when he said he “had to listen and wait for Lio”. He too did so to his detriment. Va’ati and his family have no right to remain on the allotment. In those circumstances, it is not unconscionable for Peni to assert his legal right to vacant possession of the allotment.

‘Apolosi Vaea – Seventh Defendant

  1. ‘Apolosi’s evidence was confused and confusing, internally contradictory, and contradicted not only by the evidence of Peni and his witnesses but even a number of the other Defendants. Unfortunately, the repeated contortions in his evidence led to a clear impression that he was prepared to say whatever he thought might best serve his interests. Therefore, I found ‘Apolosi’s evidence woefully unreliable. His eventual assertion that sometime prior to 1978, when Kiko emigrated to the U.S., Kiko showed him his lot on the allotment for ‘Apolosi to live on, verged on the ludicrous as a basis for claimed permission to remain there. In 1978, Kiko’s father was the registered holder of the allotment. Kiko had no right to ‘give it away’ to anyone. ‘Apolosi’s explanation for waiting well over 20 years to move onto the allotment was entirely unconvincing. In that regard, I have no hesitation in accepting the evidence given and called by Peni and that of Malcolm MacPherson that ‘Apolosi and his family moved onto the allotment well after Kiko passed and sometime after 2013. I find therefore that ‘Apolosi and his family were also brought onto the allotment by Lio. Lio had no authority from Kiko to do so. Therefore, ‘Apolosi and his family had no valid right to move onto the allotment. Kiko did not make any promissory representation to ‘Apolosi, or otherwise encourage him to act to his detriment, which could give rise to an equity in the lot he occupies. Further, as I have found that ‘Apolosi and his family moved onto the allotment after Kiko’s death in 2010, there was no basis for, and Kiko could not have acquiesced in, asserting his rights as against ‘Apolosi. Alternatively, any licence ‘Apolosi could have possibly received from or derived through Kiko terminated upon his death in 2010. It is more likely than not, in my view, that before he built his brick house, ‘Apolosi knew from the other Defendants on the allotment, about Peni, that Peni was Kiko’s heir and that Peni had, since 2011, repeatedly demanded vacant possession of the allotment. Later, Peni directly demanded that ‘Apolosi vacate the allotment. When Peni confronted him, ‘Apolosi made up another story about who gave him permission which was entirely unsupported by any other evidence. Despite Peni’s demands, ‘Apolosi refused to vacate and continued building on his lot until recently. ‘Apolosi and his family have no right to remain on the allotment. In those circumstances, it is not unconscionable for Peni to assert his legal right to vacant possession of the allotment.

‘Atiata Vaea – Eighth Defendant

  1. As noted above, ‘Atiata did not defend or participate in the action. For the reasons stated in respect of ‘Apolosi, I am satisfied that Peni has proven his claim against ‘Atiata who therefore also has no right to remain on the allotment.

Malcolm MacPherson – Ninth Defendant

  1. Of all the Defendants, I found Malcolm to be the most forthright and reliable in his evidence. Unfortunately, as conceded by Mr Etika in his closing submissions, Malcolm also had perhaps the least meritorious case for being able to remain on the allotment. He did not claim any family relationship with Kiko or Peni. He was actually brought on by Lio’s son, ‘Ifalemi Ma’u, who had even less authority than Lio to do so. He was brought on in 2013 after Kiko died and therefore could never have had Kiko’s permission in any form. He was misled by both Lio and ‘Ifalemi about the allotment belonging to Lio. And, when he received Peni’s demands to vacate, Malcolm relied on ‘Ifalemi’s advice “just stay on the land”. I therefore find that Malcolm never had any valid right to reside on the allotment. Peni did not acquiesce in asserting his rights or otherwise encourage Malcolm to act to his detriment. Malcolm has no right to remain on the allotment. In those circumstances, it is not unconscionable for Peni to assert his legal right to vacant possession of the allotment.

Result

  1. There is little doubt that for some of, if not all, the Defendants, this outcome will be very disappointing and possibly devastating. However, on the evidence as presented at trial, to have found otherwise, would have risked descending the land system in Tonga into chaos. It is a system which is already quaking under the weight of a very limited natural resource being subjected to seemingly unlimited demands for land, and their attendant disputes, including within extended family groups. For where anyone decides to occupy a vacant allotment and build brick houses thereon solely on the word of a person who is not the registered holder of the allotment and without any reliable authority from the registered holder, the occupier takes a very serious risk of being evicted. Moreover, where the registered holder has no knowledge, and therefore has given no consent to the occupation, nor has he encouraged the occupation and development of the land either expressly or by acquiescence (which requires knowledge), the expenditure by the occupier of time, effort and money in building brick houses or other work on the land (especially at the direction of the unauthorised person) cannot legitimise what was otherwise an illegitimate occupation. In those circumstances, as here, there can be no unconscionable conduct on the part of the registered holder which might permit equity to intervene to prevent the occupiers from being evicted or the landholder asserting his legal right to vacant possession of his land.
  2. Accordingly, there will be judgment for the Plaintiff.
  3. Both counsel agreed that three months is a reasonable period within which the Defendants are to vacate the allotment and remove their houses and other belongings.[29]
  4. I therefore order that, by 15 August 2023, each of the Defendants, their families and any other persons residing thereon by their permission, are to vacate the tax allotment at Loto Fualu, Pea, Tongatapu, known as “Lolopaongo”, and dismantle and remove their houses on the allotment and all other personal belongings.
  5. The Defendants are to pay the Plaintiff’s costs of the proceeding, to be taxed in default of agreement.



NUKU’ALOFA
M. H. Whitten KC LCJ
15 May 2023
PRESIDENT

[1] Deed of Grant Book 100 Folio 26 with an area of 8a 1rd 1p.

[2] [19]

[3] [34]

[4] When this was raised with Mr Etika during the trial, he said he did not remember ever acting for the Plaintiff. Mrs Vaihu had not raised and did not raise any objection to Mr Etika continuing to act for the Defendants in the matter.

[5] No objection was taken by Mr Etika to this obviously hearsay evidence.

[6] Copies of which were no longer available and were not discovered by any of the Defendants.

[7] CB 93 to 98.

[8] “[11] During those visits we have already built our new brick dwelling house on the side of their old house which was on the allotment we first occupy when we first moved in. She [Hengalele] was well aware of this development but had no objections to or was dissatisfied with our presence at the allotment.”

[9] [14] corrected accordingly.

[10] [6]

[11] [23], CB 13.

[12] Citing with discussion the decisions in Vai v ‘Uliafu & Anor LA6/1988 TLR 1989 P58 – 65; Kalaisi v Maile & Ors LA19/2015; Fohe v Mahe [2022] TOCA 23.

[13] Although the parties to that citation are better known as Dillwyn v Llewellyn.

[14] Cf Ramsden.

[15] 103 Estoppel defined

(1) If a person by his words or conduct wilfully endeavours to cause another to believe in a state of things which the first knows to be false, and if the second believes in that state of things and acts upon his belief, he who knowingly made the first statement is estopped from averring afterwards that such a state of things did not in fact exist.

(2) If a person, either in express terms or by conduct, makes a representation to another of the existence of a certain state of facts which he intends to be acted upon in a certain way, and it is acted upon in that way in the belief of the existence of such a state of facts to the damage of him who so believes and acts, the first is estopped from denying the existence of such a state of facts.

(3) If a person, whatever his real meaning may be, so conducts himself that a reasonable man would take his conduct to mean a certain representation of facts, and that it was a true representation, and that the latter was intended to act upon it in a particular way, and he with such belief does act in that way to his damage, the first is estopped from denying that the facts were as represented.

[16] For example, Tafolo v Vete (1998) Tonga LR 164 (CA), Ongolea v Finau (2003) Tonga LR 152, Vea v Filipe (2009) Tonga LR 293, Li v Finefeuiaki (2013) Tonga LR 39. See also Fakatava v Koloamatangi [1974-1980] Tonga LR 15.

[17] Citing The New South Wales Trotting Club Ltd v The Council of the Municipality of the Glebe [1937] NSWStRp 14; (1937) 37 SR (NSW) 288, 308; Meagher, Gummow & Lehanes, Equity Doctrines and Remedies 4th ed at 17-075 page 560.

[18] Applied in Ongolea v Finau, ibid, at [102].

[19] Willmot v Barber [1880] UKLawRpCh 183; (1880) 15 Ch D 96.

[20] Applied in Tevi v Paea [2021] TOLC 7.

[21] Citing Glasson v Fuller [1922] SAStRp 8; [1922] SASR 148 at 161-3; referred to in "Equity, Doctrines & Remedies" by Meagher Gummow & Lehane, 4th edition, LexisNexis Butterworths at 36-095.

[22] Citing O.G. Sanft & Sons v Tonga Tourist and Development Co Ltd [1981-1988] Tonga LR 26; Matavalea v Uata (1989) Tonga LR 101,103; Vai v ‘Uliafu (1989) Tonga LR 56.

[23] At [20], adopting the analysis of Paulsen LCJ in ‘Alisi Nginingini v Lupe Nginingini and Others [2018] TOLC 4; [2018] Tonga LR 32; Re Montagu’s Settlement [1987] 1 Ch 264.

[24] For example, ss (h): where the statement was made either by a person since dead or by some person authorized to make such statement on his behalf and was made against his pecuniary or proprietary interest provided the person making it had no interest to misrepresent the matter stated.

[25] Tafa v Viau [2006] Tonga LR 125 at [40]; Na'ati v Motu'apueka (Land Court, L 3/96, November 1998); Kalaniuvalu (Noble) v Minister for Lands (1937) Tonga LR Vol 11, 40; To'a v Veikune [PC] Tonga LR 1974-1980, 107.

[26] As discussed and applied in Tafa v Viau [2006] TOCA 6, Walter Trading Company Ltd v Ports Authority [2008] TOCA 5, Cocker Enterprises Ltd v McCarthy (trading as Le-Ata Fashion Boutique & Gift Shop) [2021] TOSC 1 and Sika v Fasi [2022] TOSC 17.

[27] At [79], citing Kolo v Bank of Tonga [1997] Tonga LR 18; Cowley v Tourist Services Ha'apai Ltd and Fund Management Limited [2001] Tonga LR 183 (CA); Westpac v Fonua [2014] Tonga LR 94 at [14]; Veamatahau v Tulikifanga [2015] TOSC 32 at [25].

[28] ‘Eseta and Tu’itupou Manu being one; and ‘Apolosi and his son, ‘Atiata Vaea (even though he did not file a defence, the evidence suggests he was brought onto the allotment through the same claimed circumstances as his father) being another.

[29] In response to a request by me on 8 May 2023, Mrs Vaihu emailed her submission that same day and Mr Etika filed a further submission to that effect on 10 May 2023.

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