IN THE COURT OF APPEAL OF TONGA
Court of Appeal, Nuku'alofa

9/2001

Tauniuvalu

v

Kaufusi

Burchett, Tompkins, Beaumont JJ 
17 July 2002; 23 July 2002 

Practice and procedure – new ground of appeal not pleaded below – not permitted 
Land law – claim of abandoned land – no step to terminate lease 

The facts of this case are set out in Tauniuvlau v Kaufusi [2001] Tonga LR 155. 

The appellant claimed that the lease was illegal on a ground that was not pleaded in the Land Court. 

Held: 

1. A new ground cannot be permitted to be maintained for the first time on appeal, particularly as a question of illegality of the lease would plainly affect the rights of the lessor, the King, who was not joined as a party. Regardless, no basis appeared for holding the lease to be affected by illegality. 

2. Then the appellant asserted that the Land Court should have found the Respondent had abandoned the land, or that she had defaulted in respect of the rent. However, no step was taken to terminate the lease on either ground. 

3. The appeal was dismissed. 

Case considered: 
 Kaufusi v Kaufusi [1998] Tonga LR 173 (CA) 

Counsel for appellant: Mr Hola 
Counsel for respondent: Mr Kaufusi 

Judgment

This is an appeal from a judgment of the Land Court in a proceeding brought by the Respondent to restrain the Appellant from entering land the subject of a lease to her, and building a house on it. The Land Court declared the lease to the Respondent valid and made an order restraining the Appellant from entering the land, unless for the purpose (to put it in summary form) of removing the building materials he had placed there. 

In 1992, the Respondent was granted a lease of a town allotment at Haveluloto. She intended to allow her son to use it as the site for his house, but he was then still a child, so the land remained without a building for a number of years. However, the Deed of Lease made 10 September 1992 between the King as Lessor and the Respondent as Lessee, for a term of 20 years at a rent of T$50 per annum, was duly registered in the Office of the Minister of Lands on 10 September 1992. There was some evidence, which does not appear to have convinced his Honour, suggesting that in some years the Respondent may have been in arrears in making payments of rent under her lease, but if so, at other times she had paid in advance. At any rate, the various steps available to the Lessor, under the terms of the lease, in a case of failure to pay the rent were never taken, and any arrears of rent were paid and accepted. According to the Respondent's evidence, which the Court generally accepted, she "looked after" the land, and the Court expressly found that "at no time" did she abandon it. Abandonment, neglect or failure to use the land are grounds upon which, under the terms of the lease, "Cabinet may at its discretion terminate this lease". There has been no such termination. 

What set in train events that have led to this proceeding was the surrender by the landholder, Tevita Uluilakepa, of land including the land leased to the Respondent, which occurred in 1994. Following proceedings that ended in this Court (Kaufusi v Kaufusi [1998] Tonga LR 173 (CA)), the present landholder was recognized as entitled. This, of course, could not affect the validity of the lease already entered into between the King and the Respondent; but it did mean that there was a new landholder interested in the land, who may not have been fully aware of the arrangements under which the Respondent came to be the lessee of the town allotment. At all events, he purported to grant rights to the Appellant in respect of the land. 

When the Appellant thus appeared on the scene, the Respondent took steps to warn him, but unfortunately she was ignored. Building operations were begun, and the Respondent brought her action to restrain them. 

The Appellant now seeks to say that the lease was illegal on a ground which was not pleaded below. Such a ground cannot be permitted to be maintained for the first time on appeal, particularly as a question of illegality of the lease would plainly affect the rights of the Lessor, the King, who was not joined as a party. It should be added that, in any case, no basis appears for holding the lease to be affected by illegality. 

Then the Appellant asserted that the Land Court should have found the Respondent had abandoned the land, or that she had defaulted in respect of the rent. But, as we have pointed out, no step was taken to terminate the lease on either ground. Since the lease stands, the appeal must fail. 

The order of the Court is that the appeal be dismissed with costs.