IN THE LAND COURT OF TONGA
NUKU’ALOFA REGISTRY                                                                        	
LA 27 of 2024
BETWEEN:	
ANTHONY WILSON
-	Plaintiff
AND:	
SIUENI PENIUETI LUTUI 
-	Defendant

         RULING ON APPLICATION FOR POSSESSION OF DWELLING

BEFORE: 		HON. JUSTICE TUPOU KC
Counsel: 		Mr C. Edwards SC for the Applicant
Mr S. Etika for the Respondent
Date of Hearing: 	20 January, 2025
Date of Ruling:           27 January 2025 
	
Background
1.	This dispute arises from agreements between the parties with regard to the occupation of a house and plot of land with an area of 1r 10p (“the property”) situated on the Defendant’s tax allotment at Mataika, Kolofo’ou, Tongatapu.
2.	The tax allotment was previously registered in the name of Siueni Peniueti Lutui Sr (“Siueni Sr”), who was married to one ‘Ema Peniueti (“Ema”). The Defendant is their eldest son and heir. 
3.	After Siueni Sr’s death, ‘Ema inherited her husband’s tax allotment as his widow. In 1973, ‘Ema granted her daughter, ‘Eseta Wilson (“Eseta”) a lease permit for 20 years. In 1993, the permit was renewed up to 2013.  
4.	In 1975, ‘Eseta and the Plaintiff built a house on the land and have occupied it to date. 
5.	After ‘Eseta’s permit expired in 2013, she and her husband continued to occupy the property with ‘Ema’s permission. ‘Ema died in 2017. ‘Eseta and the Plaintiff continued to reside on the property. 
6.	On 19 September, 2022, the Defendant, ‘Eseta and the Plaintiff entered into an agreement (referred to hereafter as Agreement 1) granting them continued occupation of the property. At the time, ‘Eseta was ill and was diagnosed with cancer. 
7.	In summary, the main terms of Agreement 1 provided that:
a)	‘Eseta and the Plaintiff will continue to occupy the land for life;
b)	after their deaths, the land shall revert to the Defendant;
c)	should ‘Eseta predecease the Plaintiff, he is free to remain on the land for life or until he migrates elsewhere for good;
d)	if the Plaintiff should choose to migrate for good, he was to notify the Defendant and must not permit anyone onto the land and house, except for the Defendant;
e)	should the Plaintiff predecease ‘Eseta, she may remain on the land for life. Upon her death, the house and fence shall become the Defendant’s property;
f)	time for removal of belongings upon the Plaintiff’s migration and/or after ‘Eseta’s death is 30 days; and 
g)	the land and house was to remain the property of ‘Eseta and the Plaintiff for as long as they both shall live. 	 
8.	‘Eseta died in 2022. Clearly, under Agreement 1, the Plaintiff was permitted to remain on the property for life or until he migrated elsewhere for good. 
9.	However, shortly after ‘Eseta’s death, the Defendant caused another agreement to be signed with the Plaintiff before the Minister of Lands. That agreement (referred to hereafter as Agreement 2) provided that:
a)	the Plaintiff may reside on the land until he:
	i) 	returned to New Zealand permanently; or
	ii)  	is deceased.
b)	the Plaintiff, upon visiting New Zealand or any other country, is to notify the Defendant;
c)	the Plaintiff, is not to permit anyone onto the property other than the Defendant and/or his family to look after the property during his absence even for a short period of time;
d)	during such period, the Defendant shall take control of the residence until the Plaintiff returned;
e)	that the Plaintiff must inform the Defendant immediately if he not returning to Tonga. 
10.	Sometime in late October or early November, 2024, the Plaintiff travelled to New Zealand for medical treatment. He had his sister-in-law Vasalua Jenner-Helu (“Vasa”) look after the property. There is no evidence that he notified the Defendant of his trip. 
11.	On or about 21 November, 2024, the Defendant discovered that the Plaintiff had left Tonga and Vasa was looking after the property. An exchange of letters between his lawyer and Vasa began, requesting she vacate the property. Vasa refused to move out. 
12.	On or about 25 November, 2024, the Defendant’s son, on the Defendant’s behalf broke the lock to the property, evicted Vasa and entered into possession with all of the Plaintiff’s belongings inside the house and his dog. The Plaintiff’s belongings and his dog were subsequently cleared out of the house and put onto the verandah/corridor for him to pick up. 
13.	The Plaintiff returned on 29 November, 2024 to find himself locked out of the property and separated with all of his belongings and dog. The Defendant has refused to let him return to the property. The Plaintiff is currently living with relatives.
The Proceedings
14.	In summary, as a first cause of action, the Plaintiff alleges that the land in question does not belong to the Defendant. Allegedly, it had been surrendered back to Government by ‘Ema with the Defendant’s consent. As such, it is no longer the Defendant’s land. This is denied by the Defendant.
15.	He filed a further affidavit on 3 January, 2025 attaching a letter from the Ministry of Lands dated 18 December, 2024 confirming that Siueni P. Lutui is the registered holder of a tax allotment known as “Mataika” with and area of 4a 3r 24.7p, that was registered on 13 February, 1899 and is located on Lot 84, BLK 79/93. The Defendant’s father was also named Siueni P. Lutui. There is nothing on this letter to mark that the Siueni P. Lutui referred to is the Defendant or to disclose the date the Defendant made the claim as heir and/or registered the land in his own name. 
16.	On the same affidavit is a copy of what appears to be a plan is attached. The heading is “Town ‘api for Free Weslyean Church (lot 6, lot 8) and Tevita Manu Fasi & Semisi Li’ekina Tangataevaha (lot 34).” The number 79’93 can be seen at the top 4 lines down on the left side of the map but nothing identifies it as Lot 84. Lot 1 bears the name ‘Eseta Wilson. There is nothing in those two documents that expressly state that Lot 1 is registered by the Defendant. 
17.	In the alternative, the Plaintiff claims that he has a right of possession of the property under both Agreements 1 and 2. And in the absence of any default provisions in the said agreements, the Defendant’s forceful repossession of the property is unlawful. 
18.	The defence on the other hand relies solely on Agreement 2 and suggests that Agreement 1 ceased to operate upon ‘Eseta’s death and/or the execution of Agreement 2. As the Plaintiff failed to notify him he was leaving for New Zealand and placed Vasa on the property, he was in breach of the agreement. He was therefore entitled to cancel the agreement and take possession of the property. 
19.	In the alternative, the Defendant pleads a lack of jurisdiction in this court to deal with the Plaintiff’s claim. It is asserted that the Plaintiff has not demonstrated he is in possession of sufficient interest in the land to invoke the jurisdiction of this court. Further, his claim for damages, unlawful conversion, breach of contract, ownership and removal of a building and fence are “essentially civil in nature” and outside the jurisdiction of this court. 
The Application
20.	The Plaintiff applies for an interim order to evict the Defendant from the property and to restrain him from interfering with his right of possession pending determination of this action.
21.	The appropriate approach on an application of this nature was set out in Friendly Islands Satellite Communications Ltd v Pohiva [2015] TOCA 14 endorsing the approach in Klissers Farmhouse Bakeries Ltd v Harvest Bakeries Ltd [1985] 2 NZLR 140 (CA) where Paulsen LCJ said:
“The purpose of an interlocutory injunction is to maintain the status quo until the rights of the parties can be determined at the hearing of the suit. In order to secure an injunction a plaintiff must show that there is a serious question to be tried (in the sense that the plaintiff has made out a prima facie case) and that the balance of convenience favours the granting of the injunction. This enquiry requires the Court to look at the impact on the parties of a granting or the refusal of an order. Finally, an assessment of the overall justice of the case is required. If it can be shown that a plaintiff will be adequately compensated in damages and will suffer no irreparable injury if the injunction is not granted that is an important factor against the making of an order. However, the grant of an interim injunction involves the exercise of a discretion and the approach that I have outlined cannot be taken as suggesting a rigid or mechanical approach.”
Serious Case to be tried
22.	The Plaintiff claims a right of possession of the property previously leased by his wife from her mother under the two agreements mentioned. The existence of the two agreements is not in dispute. Although, the Defendant contends that Agreement 2 supersedes Agreement 1. 
23.	Some of the notable difference in the two agreements are:
a)	Agreement 2 is signed by the Minister of Lands and is registered with the Ministry and therefore in my view within the purview of the Land Act;
b)	the subject of the agreement is the Plaintiff’s occupation of the land only;
c)	the Plaintiff is required to notify the Defendant even on short trips;
d)	the Plaintiff is not to put anyone in charge of the property; and 
e)	On short trips the Defendant will take control of the property until the Plaintiff’s return. 
24.	Two notable commonality of the two agreements are:
a)	that after the Plaintiff is deceased or permanently migrates abroad, the Defendant will take ownership of their house and fence; and 
b)	as highlighted by Mr. Edwards there is no provision for forfeiture or “default” as he puts it, for breach. 
25.	Even, if the accepted position is, that Agreement 2 supersedes Agreement 1 as submitted by the Defendant, I am satisfied that Agreement 2 two falls within the purview of the Land Act and creates an interest in the land in favour of the Plaintiff in line with the terms of that agreement by virtue of the Minister’s signature and its registration with the Ministry of Lands.  
26.	It follows that the question of jurisdiction is positively confirmed in line with Section 149(b) and (e) of the Land Act which confers jurisdiction on the Land Court to hear and determine disputes affecting any land or any interest in land, claims affecting any land or any interest in land, or questions of title affecting any land or any interest in land: Mortimer v Fe'aomoeata.
27.	The relevant terms under Agreement 2 are:
a)	that the Plaintiff will reside on the land until he is deceased or moves back to New Zealand permanently; and 
b)	the event that determines when the Plaintiff will have the land and building “under his rule” is the Plaintiff not returning to Tonga. 
28.	Those events have yet to occur and the interference in the Plaintiffs right of occupation is premature.   
29.	Furthermore, the provision relating to notification about short trips provides that the Defendant will take control until the Plaintiff returned. Well, the Plaintiff returned from New Zealand on 29 November, 2024 and the Defendant has not surrendered possession back to him. 
30.	It is accepted that the Plaintiff did not notify the Defendant of his trip and placed Vasa on the property against the existing terms of the agreement. 
31.	Mr Edwards submitted that the clauses requiring notification on short trips and denying the Plaintiff the right to put people on the property is repulsive and creates in the Plaintiff a prisoner to be monitored by the Defendant. 
32.	I believe the Plaintiff when he says that while his wife was suffering from cancer, the Defendant pushed them to sign Agreement 1. As well as, while he was emotionally grieving his wife, he was pressured several days later to sign Agreement 2. He characterized the Defendant’s behavior as dictatorial and those were the circumstances under which he signed the agreements. 
33.	I have no difficulty in agreeing with Mr. Edwards and concluding on the facts before me that the clause requiring the Plaintiff to notify the Defendant of his travels and to have him look after his property and not someone of his choosing is unfair and oppressive. My preliminary view is that it ought to be struck out, but on the information before me, I will not do so and reserve that position to be decided after hearing from the parties on the point in full. 
34.	The Defendant says that, had Vasa informed him that the Plaintiff was abroad for medical treatment, things may have been different. I do not believe that. It is almost 2 months since the Plaintiff returned from New Zealand and he has continued to lock him out of the property. I believe he now wants to get out of the agreement with the Plaintiff and has found an excuse to do that. 
35.	There is evidence that the Plaintiff has experienced pressure during stressful times and bad behaviour from the Defendant and members of his family previously. I don’t blame him for not wanting to go to the property while they are there to pick up his belongings or his dog. 
36.	I find the Defendant and his son’s conduct towards the Plaintiff and his property unwarranted, especially when it is to a person who was in need of recent medical treatment, particularly, when there are no express powers of forfeiture under the agreement. 
37.	As a result, I find that the Plaintiff has established a prima facie case under the circumstances. 
Balance of Convenience. 
38.	On balance, if I refuse this application, the Plaintiff will lose his only home in Tonga in which he has lived and developed for 50 years. He will continue to be dependent on family and/or incur further costs if he were to rent accommodation for him and his dog. He will lose use of plants and trees he and his wife planted on the property. 
39.	On the other hand, I am told the Defendant has his own place and I am therefore persuaded that he will suffer very little loss, if any, if the application is granted. 
40.	Accordingly, I consider that greater damage will be caused if the application is refused. Any damage suffered by the Defendant as a result of this application being granted, can be sufficiently remedied by damages and the Plaintiff has provided an undertaking as to damages. 
41.	Lastly, granting the application is to preserve the status quo until the rights of the parties are determined. 
42.	I am satisfied that the balance of convenience and the overall justice of the case favour the granting of the Plaintiff’s application. 
43.	It is worth mentioning a discrepancy in the Plaintiff’s evidence before me that was not raised by either counsel. The letter from the Plaintiff’s doctor on which he relies as basis for the recommendation he travelled for medical examination is dated December, 2024. On the facts, the Plaintiff returned on 29 November, 2024. His accident is recorded in that letter to have occurred in December, 2023 and was seen by the doctor in January, 2024. No explanation was provided for the discrepancy. 
44.	However, it does not affect my conclusion to grant the application. It would not have made a difference if he left on a vacation. 
Result
45.	The application is successful.
46.	The Defendant and all persons in occupation of the Plaintiff’s subject property at Mataika, Kolofo’ou, Tongatapu without the Plaintiff’s permission are to vacate the property upon receiving this ruling. Such persons are prohibited from removing any of the Plaintiff’s belongings from the property and are to return any that may have been removed prior to this order. 
47.	The Defendant and anyone on his behalf is injuncted from entering and/or interfeing with the Plaintiff’s quiet enjoyment of the property from this day until such time this action is determined. 
48.	The Defendant shall pay the Plaintiff’s costs to be taxed if not agreed. 
P. Tupou KC
Judge of the Land Court
NUKU’ALOFA: 27 JANUARY 2025