Lui v Soakai [2025] TOLC 8; LA 4 of 2024 (16 July 2025)

IN THE LAND COURT OF TONGA
NUKU'ALOFA REGISTRY

LA 4 of 2024

TEVITA LUI
- Plaintiff

AND:
SARALEE SOAKAI
- Defendant

JUDGMENT

BEFORE: HON. JUSTICE TUPOU KC
HON. LAND ASSESSOR FUIVA KAVALIKU
Appearances: Mrs F. Vaihu for the Plaintiff
No appearance from the Defendant
Date: 16 July, 2025

The Proceedings

1. The Plaintiff filed his statement of claim on 8 March, 2024. A statement of defence was filed on 22 April, 2024 by Mrs. Lomu of Fakatoukatea Law Firm on behalf of the Defendant. A reply to the statement of defence was filed on 30 April, 2024.
2. On 11 July, 2024. Mrs. Lomu applied to withdraw as the Defendant’s counsel for lack of instructions. Justice Cooper granted Mrs Lomu leave to withdraw for lack of instructions. On 13 September, 2024, Miss L. Fonua appeared for the Defendant. On 21 January, 2025 Miss Fonua also sought leave to withdraw for lack of instructions. Leave was granted for Miss Fonua’s withdrawal and a fresh timetable was fixed for outstanding filings. The matter was re-scheduled to be heard on 1 July, 2025 on an estimate of two days.
3. At the pre-trial conference on 24 April, 2025 Mrs Vaihu confirmed that the Minutes issued on 21 January, 2025 was served on the Defendant but since then her contacts in Vava’u could not locate the Defendant or ascertain her whereabouts unknown. The trial date was confirmed to commence on 1 July, 2025.
4. The matter was called on 27 June, 2025. Mrs Vaihu confirmed that all reasonable efforts had been made to locate the Defendant without success. Since the conference of January, 2025, the Defendant made no further appearance. The court clerk confirmed that Minutes had been sent to the Defendant’s email address on file. No response has been received to date.
5. The trial could not proceed on 1 July, 2025 as no Land Assessor was available and was adjourned for hearing today. The court staff by the email address held on file, sent the Defendant a notification of the hearing today. She has not responded or appeared today.
6. Pursuant to Order 25 Rule 5 (2) I heard the matter in her absence.

The Claim

7. The Plaintiff is the registered holder of a tax allotment (referred to hereafter as the “Allotment”) situated at Toula, Vava’u. It was registered in the Plaintiff’s name on 14 September, 1993.
8. On 18 January, 2005 the Plaintiff entered into a tenancy agreement (referred to hereafter as “the Tenancy Agreement”) with Mr. Frank Cawkwell of Zambia (referred to hereafter as “the Tenant”) to develop and occupy Lot 2 (referred to hereafter as “the Premises”) of the Allotment for 50 years.
9. The Plaintiff migrated to the United States of America shortly after the agreement was executed while the Tenant built 2 dwelling houses and occupied the Land.
10. In 2023, the Plaintiff discovered a person by the name of Robert, living on the Premises together with the Defendant. Robert died shortly after, and the Defendant continued to occupy the Premises despite being served a notice to vacate on 30 January, 2024.
11. A complaint was lodged with the police. The Defendant gave agreements to the police that purported to be a Sub-let agreement to Michele Roberts Lopez, Richard Hill and the Defendant.
12. The Plaintiff then filed these proceedings seeking orders to:
    1. terminate the Tenancy Agreement with Mr. Cawkwell;
    2. terminate the sub-let agreement between Michele Roberts Lopez and Robert Hill and the Defendant; and
    100. evict the Defendant.
         

The Defence

13. In essence, the Defendant claims she has an equitable licence to be on the Premises through what she says was a “sub-let” agreement and the Plaintiff is therefore estopped from evicting her from the Premises.
14. The Defendant seeks orders to:
    1. declare the Agreement between the Plaintiff and Mr. Cawkwell is valid;
    2. declare the Defendant has a right of occupation; and
    100. declare the Plaintiff is estopped from evicting the Defendant plus costs.
15. Alternatively, if the Plaintiff’s claim were to succeed, she seeks orders for:
    1. the Plaintiff to re-imburse to the Defendant TOP$255,783.83 the equivalent of the money paid to acquire the Land;
    2. the Plaintiff to re-imburse to the Defendant TOP$500,000 spent in maintenance, upkeep and renovations;
    100. the Plaintiff to pay the Defendant $5,000 in aggravated damages for threats, violence and mental abuse,
    4. the Plaintiff to pay the Defendant $5,000 for pain, strain and stress inflicted by the Plaintiffs relatives and counsel while she mourned Richard Hill.

The Evidence

16. The Plaintiff gave evidence via AVL from Seattle, United States of America. He told the court that after his grandfather died, the Allotment was registered in his name on 14 September, 1993. The Allotment is known as “Matahau”, consisting of 7a 2r 02p best described under Deed of Grant Book 167 Folio 101^[1] and on the head map Block sheet 215/158).
17. On 18 January, 2005, the Plaintiff entered into the Tenancy Agreement with Mr. Cawkwell from Zambia to develop and occupy a part of his Allotment identified as the Premises. The Tenancy Agreement was produced^[2] which relevantly, provided the following:
    1. the Premises consist of the buildings, fences and structures, to be built under the Agreement and the land upon which the same shall be situated on the property legally described as the Land, part of the Plaintiff’s Allotment,
    2. the Landlord lets and the Tenant takes the tenancy of the premises for the term at the rent and terms and conditions contained in the Agreement,
    100. the term of the tenancy was 50 years,
    4. rent payable was $23,750 for the duration of the tenancy,
    5. the Tenant was at liberty to develop the Land subject to minimum standards for safety, soundproof, health and any other requirement under any building code and regulations of the Kingdom,
    6. all building(s), fences, structures and fixtures on the Land, shall become the property of the Plaintiff upon completion,
    7. the Tenant was responsible for maintenance and upkeep of the premises,
    8. the Tenant may sub-let the premises provided he remained personally liable for the terms of the agreement,
    9. the Tenant may assign the tenancy subject to such assignee (s) signing the Plaintiff’s copy of the agreement with Mr. Cawkwell, otherwise such assignment did not bind the Plaintiff,
    10. the agreement provided for termination under clause 14 as follows:

“This Agreement shall not be terminated by the Landlord except if the Tenant

has defaulted in any of his obligations contained herein and he has been notified

in writing and has continued to default for 30 days.

On the other hand, the Tenant may terminate the Agreement at any time by

giving written notice thereof to the Landlord, provided that he shall not be

entitled to any refund of any payment of rent made under clause 4 of this

Agreement.

In either case, the Tenant shall leave the premises in good tenantable and clean

condition.”

18. The Plaintiff left Tonga for the United States shortly after the Tenancy Agreement was signed in 2005 and has lived there since. In 2020, the Plaintiff was told by family in Vava’u that they noticed new people on the Premises. The Plaintiff engaged Mr. Samiu Vaipulu who had drawn up the Tenancy Agreement with Mr. Cawkwell, to assist. A letter was sent to the occupants of the Premises to stop any work therein.
19. Around the same time, in January, 2020, the Plaintiff received a call from a person named Robert with a request to sub-lease the Premises from him. The Plaintiff refused.
20. Due to the global covid-19 lockdown, the Plaintiff could not visit Vava’u until 2023. Once in Vava’u, the Plaintiff visited the Premises and was met by the Defendant there. She told the Plaintiff that Robert was ill and incognizant but he could talk to her. Robert died the following week.
21. The Plaintiff agreed for the Defendant to hold Robert’s funeral on the Premises because she agreed she would vacate the Premises afterwards.
22. However, after the funeral, the Defendant continued to occupy the Premises and refused to move. The Plaintiff lodged a complaint with the police. Apparently, the Defendant gave the police documents to show she was a tenant on the Premises. The Plaintiff filed this action against her.
23. The court was told that the Defendant has subsequently vacated the Premises and like Mr. Cawkwell, her whereabouts is unknown.

Considerations

24. After hearing from the Plaintiff, I am satisfied on the evidence that the Plaintiff is the registered holder of the tax allotment on which the Premises is situated and pursuant to clause 6 of the Agreement, the owner of all buildings and structures therein.
25. I accept that under the Tenancy the Plaintiff lets the Premises to the Tenant for 50 years and that the rent for the term of the tenancy has been paid in full.
26. I turn to the orders sought as relief by the Plaintiff here^[3].

Cancellation of the Tenancy Agreement with Mr. Cawkwell.

27. Under clause 3 of the Tenancy Agreement, the term of the tenancy is 50 years and therefore runs until 2055.
28. Clause 14 of the Tenancy Agreement provides for the termination of the Agreement by either party. It states that the Plaintiff may not determine the Agreement unless:
    1. the Tenant defaulted in his obligations under the agreement;
    2. the Tenant is notified in writing of such default; and
    100. such default has continued for 30 days.
29. Here, the Plaintiff alleges that the Tenant is in breach of the Agreement by:
    1. assigning his rights under the Tenancy Agreement without having the Plaintiff’s copy of the Agreement signed by such assignees,
    2. not insuring the property, and
    100. allowing the building to run into disrepair.
30. Having considered the Plaintiff’s written and viva voce evidence, I do not find he had proven the alleged breaches to the required standard. He made the allegations that the Tenancy Agreement was assigned and the Premises uninsured and run down, but those allegations were just that, mere allegations.
31. I found nothing in the Plaintiff’s evidence that substantiated the alleged breaches. The offending agreement was not produced. The Plaintiff could not explain the basis of his allegation that there was no insurance and provided nothing to substantiate the run down state of the building(s). To that end, by his own evidence, the Plaintiff in 2020 stopped Robert via Mr. Samiu Vaipulu from carrying on any work on the Premises. However, the Plaintiff’s case does not turn on this point for reasons I will now discuss.
32. The pivotal issue in this case is whether the Tenant was notified by the Plaintiff of the alleged breaches? There was no evidence to this point. The Plaintiff told the court that he has no information on the Tenant’s current address or whereabouts and he had heard he passed away, although there was nothing to prove that the Tenant had died.
33. That does not absolve the Plaintiff from the requirement to give the Tenant notice. Service of such notice would have been deemed sufficient had it been served on the Defendant as the Tenant’s agent^[4], or the Premises^[5] or the Tenant’s last known address^[6]. If after 30 days the breach is not remedied, the way would then be clear for the Plaintiff to bring these proceedings.
34. In the absence of any proof that notice of the alleged breaches was served on the Tenant, I draw the inevitable conclusion that this proceeding is pre-mature and the application to cancel the Tenancy Agreement is refused.

Cancellation of Agreement between the Tenant, Michele Roberts Lopez, Robert Hill and the Defendant

35. Here, the Plaintiff did not claim to be a party to the agreement between the Tenant and Mr. Lopez or the agreement between Mr. Lopez and Mr. Hill and the Defendant. The Plaintiff is therefore an outsider and has not proven locus standi to seek cancellation of those agreements.

Eviction of the Defendant

36. The alleged agreement involving the Defendant was not produced, depriving the court of any reasonable means of assessing its relevance to the case at hand or the basis upon which it may issue orders to evict the Defendant.
37. As it stands, the Tenant has retained all rights of possession and occupation of the premises until 2055. Therefore, any right of eviction in respect of the Premises vests in the Tenant and not the Plaintiff unless and until such time the Tenancy Agreement is properly terminated under the terms of the Agreement or otherwise.

Result

38. The Plaintiff’s claim is dismissed.
39. The Tenancy Agreement of 18 January, 2018 between the Plaintiff and the Tenant subsists and the consequences thereof are between the parties.
40. No orders as to costs.
    

P. Tupou KC
Judge

Nuku’alofa: 16 July, 2025

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^[1] Court book, pg. 29, a certified copy was handed up by counsel in court
^[2]
[3]See para. 12 above
^[4] Halsbury’s Laws of England, Vol., 27, para.197
^[5] Ibid.
^[6] Ibid.