Kaufusi v Tauniuvlau [2001] TOSC 28; L 0902 1999 (9 July 2001)

IN THE SUPREME COURT OF TONGA
LAND COURT JURISDICTION
NUKU'ALOFA REGISTRY

NO.L902/99

BETWEEN:

'ANA 'OFANOA KAUFUSI
Plaintiff;

AND:

SIONE TU'AVAO TAUNIUVLAU
Defendant

BEFORE THE HON. JUSTICE FORD
Assessor: Honourable Tu'ilakepa.

Counsel: Mr M. Kaufusi for the plaintiff and
Mr Hola for the defendant.

Dates of hearing: 30 April, 8 May 2001
Date of judgment: 9 July, 2001

JUDGMENT

In the early 1990s the plaintiff, 'Ana Kaufusi, approached a relative of hers, Tevita Uluilakepa, to see if she could acquire some land from his tax allotment at Haveluloto which could be set aside for her eldest son who was then only eight years of age. The land had been subdivided and Uluilakepa suggested that, until such time as her son came of age, the plaintiff should take a lease in her own name of lot 23 which he was prepared to make available. The plaintiff agreed to the proposal and she paid the landholder an agreed consideration of $3000 at the time the arrangement was entered into and a further sum of $2000 later upon registration of the lease.

The application to lease was duly approved by the Minister of Lands and by Cabinet and the lease was registered in the plaintiff's name on 10 Sept 1992. The lease was for a term of 20 years from 10 Sept 1992 and the rental was fixed at $50 per annum.

Nothing was built on the land but the plaintiff said in evidence that she looked after it and paid the agreed rent and there was no problem until one day in March 1999 when she visited the api and noticed that someone had recently cut the grass and carried out some clearing work. She made inquiries as to who had been trespassing on her land and she found out that it was Sione Tauniuvalu, the defendant in this proceeding.

The plaintiff then arranged for a solicitor's letter to be written to Mr Tauniuvalu warning him not to go on to her allotment without permission otherwise she would take him to Court. The letter was dated 22 March 1999. Mr Tauniuvalu ignored the plaintiff's letter and some time later the plaintiff noticed, no doubt much to her surprise, that he had started building a concrete block house on her land. She approached her solicitors again and on 14 June 1999 a further letter was written to the defendant in the following terms:

"Re 'Ana Kaufusi

We represent the above person. Our client has lodged a complaint with us that you have disregarded our letter of warning to you dated 22/3/99. You have trespassed and built on this leased allotment without permission from our client.

You should not have started building until your situation in regard to this allotment is clarified.

If you do not obey this letter of warning we will take you to Court and that will be costly.

Yours etc."

On 17 June 1999 the defendant's solicitor, Mr Hola, responded to that letter. He said that the allotment belonged to Naitingikeili Kaufusi and he had given it to the defendant. Mr Hola asked the plaintiff to provide proof of the documents which showed that she leased the allotment and he went on to say that if she had obtained the lease from "Mo'ale" then "it is not correct according to the court case".

The plaintiff's solicitor responded by letter on the same day stating that "the court case" did not affect the validity of the plaintiff's lease and the defendant was warned again to keep off the property.

The defendant did not heed the warnings, however, and it was necessary for the plaintiff to issue these proceedings to bring matters to a head. The writ and statement of claim were filed in August 1999 and on 3 September 1999 the plaintiff obtained an injunction restraining the defendant from entering the allotment.

The "court case" referred to in the correspondence was the decision of the Court of Appeal in proceeding No 297/1996, which was delivered on 7 August 1998. The decision was produced as an exhibit in this case and there were a number of references made to it in the course of the hearing because it related to the estate of which the allotment in question forms part.

It appears that the background to proceeding 297/96 is that in about April 1994 the landholder referred to earlier in this judgment, Tevita Uluilakepa, surrendered his tax allotment at Haveluloto in the expectation that his eldest legitimate son by his second marriage, Mo'ale Uluilakepa, would obtain title. The Court of Appeal held, however, that, in terms of the devolution provisions in the Land Act (CAP.132), the lawful landholder was not Mo'ale but Viliami Kaufusi who was Tevita's eldest legitimate son by a prior marriage. By the time of the Court of Appeal hearing Viliami Kaufusi had died and his three sons were appointed his representatives. The eldest of his three sons was Naitingikeili Kaufusi and by agreement with his younger brothers, Naitingikeili succeeded as registered holder of the estate. The estate in question included the allotment that had been leased to the plaintiff back in 1992 by Tevita.

The Court of Appeal decision can have no effect on the validity of the 20 year lease granted by Tevita to the plaintiff but it is relevant to this present proceeding in that it explains the process by which Tevita's grandson, Naitingikeili Kaufusi, obtained title to the land.

In the present proceeding the plaintiff seeks a declaration that her lease is valid and she seeks orders evicting the defendant from her land and restraining him from entering upon or continuing to build upon the said land.

In his statement of defence filed on 9 February 2000, the defendant, Sione Tauniuvalu, pleaded that he was the lawful occupier of the land in that "he was granted the allotment by the present owner of the land Naitingikeili Kaufusi".

The defendant called Naitingikeili Kaufusi as a witness. He confirmed that following on from the death of his father, the Court of Appeal decision and the agreement he had reached with his brothers, he became the registered holder of the estate which included the allotment leased to the plaintiff. Mr Kaufusi told the court that the defendant was related to him on both sides of the family and that some time after the release of the Court of Appeal decision he received an approach from the defendant who asked him for a piece of land. Mr Kaufusi said that he agreed to the request and he repossessed the allotment that had been leased to the plaintiff and he surrendered it to the defendant for "a gift of some money".

Mr Kaufusi said that he exercised his right to take possession of the land in question because "it had been abandoned" and, after some leading questions from his counsel, he added that another reason he repossessed the land was because the plaintiff had been in arrears with payment of her rent.

It was not clear from his evidence exactly when Mr Kaufusi claimed to have repossessed the land but on 22 March 1999 he wrote a letter to the Minister of Lands which is quite revealing. I set it out in full:

22 March, 1999

Hon Minister of Lands

Survey Office

Nuku'alofa

Sir,

Letter of Surrender for part of Tutitokelau, Haveluloto

I hereby respectfully convey in this letter that I NAITINGIKEILI KAUFUSI the holder of the tax allotment TUTITOKELAU at Haveluloto, Tongatapu .

This api has been allocated and subdivided as a town api and I surrendered LOT 23 so SIONE TAUNIUVALU TU'AVAO of Haveluloto can apply for it.

This api was subject of a dispute in the land Court and in the Court of Appeal as well. If Tevita and Mo'ale Uluilakepa had granted this allotment to anyone I did not consent to that and even if my Father Viliami Kaufusi who claimed this api from Tevita and Mo'ale Kaufusi and won in the Land Court, I wish to cancel all their grants.

Yours respectfully

Naitingikeili Kaufusi

cc. Sione Tauniuvalu Tu'avao "

The contents of that letter are consistent with my analysis of the evidence. I simply do not believe Naitingikeili Kaufusi when he says that he repossessed lot 23 because it had been abandoned and because the lessee was in arrears with her rental payments. The truth of the matter, in my judgment, is that at about the time he purported to repossess the allotment in March 1999 and surrender it to the defendant, he did not know anything about the lease of the land to the plaintiff. Mr Kaufusi's letter to the Minister of Lands of 22 March 1999 makes no mention of the plaintiff having abandoned the land or being in arrears with her rent payments. In fact, it makes no reference whatever to the plaintiff or to her lease.

It is apparent from that same correspondence that Mr Kaufusi suspected that one of the former registered titleholders to the property may have entered into some transaction in relation to the allotment in question but he appears to have adopted the attitude that after the Court of Appeal decision he, as the confirmed registered holder of the allotment, was not bound by any earlier agreements in relation to the land and he simply wanted all occupiers under any such agreements evicted at the earliest opportunity .

I find it disturbing that Mr Kaufusi should have taken such a high-handed attitude as to his perceived legal rights. Virtually every step he has taken in relation to the allotment in question since the Court of Appeal decision appears to have been overbearing and totally in disregard for the rights and feelings of the plaintiff as the lawful occupier of the land.

I am satisfied, and I find as a fact on the balance of probabilities, that at no time did the plaintiff abandon the allotment or fall into arrears with her rent in the manner alleged but, more importantly, even if she had failed to comply in some way with the terms of her lease, Mr Kaufusi was not a party to the lease and he had no rights whatsoever to intervene and repossess the allotment. If the lessee had made default under the lease then that would have been a matter for Cabinet to deal with as appropriate -- not for Mr Kaufusi as the landholder.

It is significant in my view that in a subsequent letter to the Minister of Lands dated 30 September 1999, some 27 days after the plaintiff had obtained her injunction against the defendant, Mr Kaufusi acknowledged that at the time he purported to give the allotment to the defendant back in March 1999, he had no knowledge of the lease to the plaintiff. In that same letter, notwithstanding the fact that court proceedings had by then been issued, he quite brazenly, without reference to the proceedings, asked the Minister to cancel the plaintiff's lease.

When Mr Kaufusi became the registered holder of the allotment following on from his grandfather's surrender of the land and the subsequent Court of Appeal decision, section 59 (1) (a) of the Land Act (CAP.132) came into play and that section provides that upon surrender of an allotment over which a lease has been granted, the allotment devolves upon the heir subject to the terms of the lease.

It should never have been necessary for the plaintiff to bring this proceeding. She was entitled under her lease to undisturbed possession of the allotment. She should never have been subjected to the kind of arrogant and outrageous conduct embarked upon by the defendant. I do not blame the defendant entirely for the situation, however, because he was obviously misled by the even more aggressive and offensive behaviour of the landholder.

The defendant's cause was not helped by having the landholder's solicitor acting for him throughout. The defendant should have been advised right from the outset to seek independent legal advice.

The plaintiff has been completely successful in her claim. She is entitled to the remedies she seeks and I, therefore, make the following orders:

1. A declaration is issued confirming the validity of the plaintiff's lease.
   
2. An order is made restraining the defendant, his employees and agents from entering upon the said allotment unless it is for the purpose of demolishing the partially erected building on the said land and/or removing the demolition material from the site.
   

The relief sought in the statement of claim does not seek any specific order for disposal of the partly completed concrete block house on the allotment no doubt in recognition of the fact that it is not a matter coming within the jurisdiction of the Land Court. If necessary, however, (and I would not expect it to be) further Orders can be sought in this Court's civil jurisdiction.

The plaintiff is entitled to costs to be agreed or taxed.

NUKU'ALOFA: 9 July, 2001

JUDGE