Vea v Filipe [2009] TOLawRp 35; [2009] Tonga LR 293 (3 July 2009)

IN THE SUPREME COURT OF TONGA
Land Court, Nuku'alofa

L 21/2009

Vea

v

Filipe

Andrew J
8 June 2009; 3 July 2009

Land law – eviction sought – agreement to be joint tenants – estopped from evicting defendant
Estoppel – eviction sought – relied on agreement to be joint tenant – eviction application dismissed

The parties executed an agreement on the 5th November 2007 that provided that they would run and operate a gas station and store at Pangai, Ha'apai. In essence the defendant was to provide the finance to build the business. It was agreed that the defendant would have a 51% share of the business and the plaintiff 49%. The defendant was to be the Chief Executive Officer and the plaintiff the operational manager. The land was leased to the plaintiff but the defendant claimed that the agreement was that the land would be leased to both parties. The plaintiff sought the eviction of the defendant and his business from his land being a piece of land in Pangai, Ha'apai located at the intersection of Holopeka Road and Velitoa Road being deed of lease No.7624 duly registered on the 27th August 2007.

Held:

1. The Court found that the defendant relied on the agreement that he was to be a joint tenant. Equity recognised and empowered a right to occupy and use the property where the person in occupation acted in reliance upon the representation or the acquiesance of the person having a proprietary interest in the land. If the defendant were evicted he would lose everything on the basis of an agreement whereby he was to be a joint tenant.

2. The plaintiff was estopped from evicting the defendant.

3. The application for the eviction of the defendant and his business was dismissed.

Case considered:

Tafolo v Vete [1998] Tonga LR 171 (CA)

Statutes considered:

Constitution of Tonga (Cap 2)

Public Holidays Act (Cap 51)

Counsel for the plaintiff : Mr Pouono
Counsel for the defendant : Mr Mangisi

Judgment

The plaintiff seeks the eviction of the defendant and his business from his land being a piece of land in Pangai, Ha'apai located at the intersection of Holopeka Road and Velitoa Road being deed of lease No.7624 duly registered on the 27th August 2007.

The parties executed an agreement on the 5th November 2007. That agreement which was also described as a partnership provided that they would run and operate a gas station and store at Pangai, Ha'apai. In essence the defendant was to provide the finance to build the business. It was agreed that the defendant would have a 51% share of the business and the plaintiff 49%. The defendant was to be the Chief Executive Officer and the plaintiff the operational manager.

The contentious part of the agreement in clause 7 which states and I quote:

" 7) That Sione Mateialona Filipe provides finance for the rent or lease of land where the business is located at Pangai, Ha'apai"

The defendant says that at the end of the Clause the following words were added "and the lease to be registered in the parties names." This is disputed.

It is apparent that prior to the agreement of the 5th November, 2007 the parties had sought to obtain a suitable piece of land upon which to build a gas station. Since May/June 2007 the plaintiff had approached his relative, Viliami Langi to lease his land which was deemed to be suitable for a gas station. The land was duly leased to the Plaintiff. But the defendant says that the agreement was always that the land would be leased to both of them. The defendant says that the agreement was that he would provide the finance and the plaintiff was to obtain the land. He says it would have made no commercial sense for him to provide the finance and the plaintiff to obtain a lease solely in his own name. He relies on the additional words, in handwriting, which were added to clause 7.

The plaintiff denies that there were any such words, handwritten, in clause 7. The defendant is adamant that there was and that is what was agreed upon. Further he says that the Plaintiff had acquired the lease through fraud and deceit by not informing the defendant that the lease would be under his name only nor informing the landowner of his involvement with the defendant. Consequently, it is argued that the plaintiff is estopped from evicting the defendant from the property.

A $136,000 loan had been taken out in September 2007 (2 months prior to the written agreement) whereby the loan agreement is charged over the defendant's term deposit totalling T$250,000. The defendant was to provide the finance and the plaintiff was to obtain the land. It does seem to me that it would not have made commercial name for the defendant to provide the finance and build the gas station (as was done) without there being a joint lease. Moreover I accept the evidence of 'Olive Filipe who said that she was a supervisor/secretary and she had drafted the agreement of the 5th November 2007, on the 2nd November 2007. She said it was given to the plaintiff and then it came back to her with those additional words deleted. She said that after speaking to the defendant the words were added again and she was present when both parties eventually signed the agreement with the additional words to clause 7 being agreed upon.

I think that in this case the defendant relied upon that agreement. In Tafolo v Vete [1998] Tonga LR 171 the Court of Appeal held that equity will recognise and empower a right to occupy and use the property where the person in occupation has acted in reliance upon the representation or the acquiesance of the person having a proprietary interest in the land. If the defendant were now evicted he would presumably lose everything on the basis of an agreement whereby he was to be a joint tenant.

The Plaintiff's claim here is only to evict the defendant. For all of the above reasons I find that the plaintiff is estopped from evicting the defendant at this stage.

I note that there are other proceedings before the Court involving this whole business arrangement.

I should refer to an argument advanced by the plaintiff that this agreement on the 5th November 2007 was made on a public holiday. It is argued that the agreement was null and void because Sunday the 4th November was Constitution day and the following Monday the 5th was celebrated as the public holiday. The argument goes that Clause 6 of the Constitution says, inter alia, that any agreement made on that day shall be null and void and of no legal effect.

Then s 3 of the Public Holidays Act provides that no person is compellable to do any act on a public holiday which he was compellable to do on a Sunday.

However, I do not find that this means that any agreement made on a Sunday which is null and void will also be null and void on the next Monday where it is a public holiday as consequence of Constitution day having fallen on the Sunday. The Public Holidays Act is talking about person not being compellable to do any act on a public holiday which he would not be compellable to do on a Sunday. There is no suggestion here of the parties being compellable to do any act. They simply made an agreement on the Monday without giving any thought to it being a public holiday.

The application for the eviction of the defendant and his business is dismissed.

Costs to the defendant as agreed or taxed.