Mangisi v Filipe [2001] TOSC 29; L 1201 1999 (11 July 2001)

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

NO.L.1201/99

BETWEEN:

'OLIVE MANGISI
Plaintiff

AND:

SIONE FILIPE
Defendant

BEFORE THE HON. CHIEF JUSTICE WARD and
ASSESSOR GEORGE BLAKE ESQ.

Counsel: Mr T. Fakahua for plaintiff
Ms L. Tonga for defendant

Hearing: 9 and 10 July 2001
Judgment: 11 July 2001

JUDGMENT

The plaintiff is the registered holder of leasehold land in Sopu under Deed of Lease number 6248. She first applied to Cabinet in 1991 and her application was approved but it was not until September 1998 that the lease was registered.

Prior to January 1996, the parties believed they were married but the marriage was declared a nullity at that time. Whilst they were still 'married', both were in business and there was litigation over the various assets. In the course of it and in order to resolve it, they made and signed, on 12 January 1993, a Deed of Settlement to resolve the disposition of their various properties. One such property was the container yard and, under clause 2 (c) of that Deed, the defendant was to have "usage of container yard at Sopu". Although not identified any more specifically, there is no dispute that it is the Sopu property, lease number 6248.

Since that time the defendant has continued to use the property and the plaintiff has paid the rent of $350 pa due under the lease but received no rent from the defendant. She brings this action for an order to evict the defendant.

The case pleaded was that the agreement under the Deed was for the defendant to have the usage and control of the land and, in return, he would be responsible for paying off all the debts that had been incurred by the plaintiff and the defendant. Paragraph 8 of the claim states:

"8. It was an implied term of the agreement however that the defendant would occupy the land only if he would observe his obligations under the agreement especially paying off their debts. The defendant's time of occupation of the land would therefore be determined and/or terminated by the plaintiff if the defendant breached the agreement."

There followed a reference to an action in which an American company obtained judgment against the defendant for a large sum. Paragraph 10 continues:

"10. Since then, the defendant has been having the usage of the land and container yard without the consent of the plaintiff. The plaintiff tried to vacate the defendant, who has brought Filcorp [a company owned by the defendant] into the land, therefrom without success."

In her evidence the plaintiff told the court that she had spoken to the defendant on a number of occasions to try and persuade him to leave the land. She gave no details of when and how often but, in February 1998 following an telephone conversation with him, he faxed a response. In it, after referring to a dispute over the children, he continued; "I have bought other properties to move my containers to but I'll fight you in court anyway."

The plaintiff asks the court to take that as an admission that he accepted he had to vacate the land. I cannot take it as having that meaning. On the contrary I am satisfied that the plain meaning of those words is that he does challenge and intends to continue to challenge any attempt to move him from the land.

In early 1998, the plaintiff filed a case (19/98) in the court against the defendant claiming breaches by him of the terms of the Deed. That claim was dismissed on 22 October 1998.

On 23 October 1998, a letter was sent to the defendant by a solicitor on her instructions demanding that he should vacate the land. From the terms of that letter, the sole basis for the demand appears to have been that the plaintiff had the title to the land and that the defendant did not pay any rent or lease payment for it.

During the present trial, her counsel did not lead any evidence from the plaintiff about the alleged failure by the defendant to comply with the agreement. In cross examination it was apparent that she wished to rely on such a breach. At the end of her evidence at my request, Miss Tonga for the defendant agreed in the interests of justice, that the plaintiff should be able to give further evidence in chief of these matters. She did so but did not pursue the breach pleaded in the statement of claim relying instead on a claim that the original agreement was to allow the defendant to use the yard only for three months until he found an alternative place for his containers. It was that agreement, she told the court, which led to clause 2 (c). It has not been pleaded.

Miss Tonga submitted no case to answer on the basis that the evidence revealed no ground for the relief sought. She asked the court to disregard the evidence of the suggested agreement that the defendant should only use the yard for three months. It was not pleaded and there was no warning of such a claim.

It is clear that it is the duty of counsel to plead the case correctly and failure to do so may result in the claim being refused. However, as was stated by the Court of Appeal in Prasad v Morris Hedstrom (No 2) (1993) Tonga LR 69, the purpose of pleadings is to make clear the case the other side must answer to ensure the correct issues are tried but where, despite inadequate pleadings, an issue is clearly raised and is understood by the opposing party to be so raised and can be dealt with, it should not be excluded simply because of inadequacy of pleadings.

It is clear the claim of a three months limit should have been pleaded. In the previous court case, C19/98, the plaintiff raised it in her evidence and Finnigan J, in his judgment produced before this court, referred to the fact that it had not been pleaded in that case either. Miss Tonga is right to seek to have that part of the plaintiff's case excluded but I am satisfied that, even produced at such a late stage in the case, it causes no injustice to the defendant to have to deal with it. It has been clear all along that the basis of the plaintiff's case was that she considered the defendant had failed to perform his part of the agreement as stated in the deed. All the new matter raises is a different basis for the suggestion that he had not done so. Miss Tonga has made it perfectly clear that the defendant challenges the allegation.

I considered the claim that the right to occupy the land stated in clause 2(c) of the Deed was agreed only to run for three months did establish a prima facie case. Miss Tonga had agreed to stand by her submission and not call any evidence. There appeared to be some confusion when I asked her if she was electing not to call evidence and I take the opportunity to restate the position.

Unlike criminal cases, in a civil case where trial is by judge alone and counsel for the defence submits no case to answer, it is usual for the judge to require the defence to elect to call no evidence before making such a submission unless the submission relies entirely on matters of law. The principal reason for this is that, should there be an appeal at which the judge's ruling is reversed, there would need to be a retrial which would add to the cost to the parties. However, if counsel has elected not to call evidence, the appellate court is able to make a final order even if it quashes the decision of the trial judge; Alexander v Rayson (1936) 1 KB 169; Young v Rank (1950) 2 KB 510.

I pass on now to consider the evidence in relation to the claim. The burden is on the plaintiff as the party asserting the special meaning of clause 2 (c) and she must establish that on the balance of probabilities. This is one of the exceptions to the general rule under section 79 of the Evidence Act and so the plaintiff is entitled to give evidence to vary the written terms of the Deed.

Having considered the evidence, I do not consider that I can accept the evidence of the plaintiff on this.

Her evidence was that they reached agreement after the judge in case number 1061/92 suggested they should try and reach a settlement. There followed a discussion between the parties and their counsel. The plaintiff tells the court that, when the question of the defendant's use of the leasehold property was raised, the defendant asked for three months to remove his containers. The plaintiff agreed and the Deed was then drawn up by her, then, solicitor. I find it incredible that the clause would have been expressed in the terms in which it appears if that is correct. What the plaintiff's evidence suggests is that the agreement was not to give the use of the land to the defendant but to reserve it for the plaintiff subject to a three month licence to the defendant to use it. The agreement was drafted so that the first clause started with the words; "The Plaintiff will have the following:..." There follows a list of five properties and two vehicles. One of the properties was the leasehold at Sopu. The second clause started with similar words: "The Defendant will have the following:...." and included thereafter is clause 2 (c).

If those two clauses are read together, I cannot believe that a lawyer would have failed to state, if the agreement was only to give a limited licence to the defendant, that the use of the yard was so limited. At the same time it should be stated that it was a remarkable arrangement that the plaintiff would retain a 50 year lease with the obligation to pay rent and agree to the defendant's use of it free for possibly the whole of that period. The parties' lawyers should have considered at least some time limit or reciprocal obligation. However, the term of the clause is plain and it appears that none of the signatories questioned it. I cannot accept the plaintiff's evidence of an intended modification to that clear clause.

Further, if, as the plaintiff says, this was only a three month licence, it is remarkable that she took no action to recover it for so long. She told the court that she had spoken to the defendant a number of times asking him to leave the property. I accept she may have done so but, when he did not move, she failed to take any steps to recover possession for five years. It was not until early 1998 that she filed a claim in the courts. It was the same year that she spoke on the telephone and received the faxed reply and it was the same year that she took the step of instructing her lawyer to send a notice to quit. I find that an extraordinary delay made all the more extraordinary because the plaintiff mortgaged the property to the MBf bank in 1995. Would she not, if her account is accurate, have been spurred at that time at least into taking steps to enforce the limitation she says was to be read into clause 2 (c)?

Having heard the plaintiff in the witness box, I accept she may have believed at the time of the settlement that the defendant was unlikely to use the land for long but I am far from satisfied that there was an agreement to that effect between the parties.

There is not other basis advanced for the eviction of the defendant and the plaintiff's claim must fail. I give judgment to the defendant with costs.

NUKU'ALOFA: 11 July, 2001.

CHIEF JUSTICE