Ongolea v Finau [2003] TOSC 36; LA 001 2003 (20 June 2003)

IN THE LAND COURT OF TONGA
NUKU'ALOFA REGISTRY

NO. LA. 1/2003

BETWEEN:

SOAKIMI SANUALIO ONGOLEA
Plaintiff

AND:

1. 'ESALA FINAU
2. MELE FATAI
3. MAHE FATAI
Defendants

BEFORE THE HON. JUSTICE FORD

ASSESSOR: GEORGE BLAKE

COUNSEL: Mr Fakahua for the plaintiff and
Ms Mangisi for the defendant.

Dates of hearing: 13, 14 May 2003.
Dates of submissions: 28 May and 12, 18 June 2003.
Date of judgment: 20 June 2003.

JUDGMENT

The 34-year-old plaintiff, Soakimi Ongolea, said in evidence in chief that he resides in Ma'ufanga and works as a printer in America but, surprisingly, he did not expand on this statement and the court was told nothing else about his background.

It appears, however, from other evidence that Soakimi has, in fact, resided in the USA for a considerable number of years. He returned to Tonga in 2001 and on 7 November 2001 he was issued with a Deed of Grant in respect of a town allotment in Ma'ufanga in the estate of Hon Fakafanua. The allotment is on the By-Pass road opposite the entrance to the Small Industries Centre. It is a large allotment comprising of 1 rood 24 perches or 1619 sq m.

Soakimi's application for the allotment is dated 12 February 1998. Whether he was eligible to be granted an allotment is, again, something that was not explored in evidence. It is not clear, for example, whether he complied with the first rule for the allocation of allotments under section 50 of the Land Act (CAP.132) which provides that the applicant must be "lawfully resident" in the estate.

Soakimi's application was not signed by the estate holder, Hon Fakafanua, until 26 July 2001. There was no explanation in the evidence for the three-year five-month delay.

The present proceedings were filed on 29 January 2003. The plaintiff seeks an order evicting the defendants and their family from his allotment. For their part, the defendants claim that they have a right to remain on the allotment because they have occupied the land since 1975 and it had been specifically allocated to them at that time by the previous landholder.

Shortly after the proceedings were commenced back in January, the plaintiff filed an ex parte application for an interim injunction directing the defendants to vacate the land within one month. The injunctive relief was refused. The basis for the application was said to be that the plaintiff wished to build on the land. In his supporting affidavit, the plaintiff deposed that he had ordered the defendants to vacate the land as long ago as November 2001 but they had ignored his direction.

In December 2002 the plaintiff imported from the USA a large 40 ft by 8 ft container of building materials sufficient for the construction of two dwelling houses. He proposes to build the houses on his allotment but he cannot begin construction until the defendants' house is removed. The container is presently stored on the front of the allotment. It appears from the evidence that the two houses to be built on the land are not for the plaintiff's own use but he intends to let them out to other people.

Helpful evidence was given by the Assistant Registrar of Lands, Makakaufaki Kaulufonua. Mr Kaulufonua said that the records held in the Ministry of Lands show that the land in question was originally part of a tax allotment in the name of Mikaele Misingongo. Mikaele's matapule name was "Kama". His son and heir was Soane Mikaele Kama. In turn, Soane Kama's son and heir is Felisi Kama. The land had been registered in Mikaele's name since 29 May 1935.

On 14 December 1992, Mikaele wrote a letter to the Minister of Lands surrendering 1 rood 24 perches of his tax allotment to the plaintiff. The surrender letter was also signed by Mikaele's son Soane Kama as "heir". At that time Mikaele appears to have been living with his son, Soane, in Palo Alto, California. The plaintiff told the court that Mikaele agreed to surrender the land in exchange for an allotment held by the plaintiff at Houmakelikao upon which they wished to build a Catholic Church. No documentation was produced, however, relating to that exchange agreement and the law is clear that a person surrendering land cannot impose conditions to that surrender. It is not clear, therefore, on the evidence how the exchange transaction was effected.

Mikaele's surrender application was approved by Cabinet on 21 April 1993. The court was told that Mikaele died in 1993 or 1994 and his son Soane died in 1996. The evidence was that no heir's claim to the land was made within 12 months of either Cabinet's approval to the surrender or Mikaele's death. Under section 87 of the Land Act, therefore, the land reverted to the estate holder, Hon Fakafanua.

That was the situation when, on 12 February 1998, the plaintiff signed his application for a Deed of Grant to the land in question. Why the plaintiff waited so long after the land had been surrendered in his favour by Mikaele, to file his application is a matter upon which the evidence is simply silent.

It is now timely, in the narrative, to turn to consider the case for the defendants.

The first defendant, 'Esala Finau, is 84 years of age. He said that he had been married to Hainite who passed away three years ago. They had four children, two of whom are now deceased. 'Esala and his family moved to Tongatapu from Ha'apai. The year of the move was not specified. 'Esala's late wife, Hainite, was Mikaele's niece.

'Esala's evidence was a little confusing at times. He attributed that to his age and I accept that explanation. It appears, however, that after the family moved to Tongatapu they lived on land at Ma'ufanga owned by 'Esala's brother. For a period his wife, Hainite, apparently lived with her mother and Mikaele. I am satisfied that Mikaele had a special fondness for his niece, Hainite.

In 1975 Mikaele told Hainite and 'Esala to move onto his tax allotment at Ma'ufanga and they duly did so. Mikaele and 'Esala walked over the land and Mikaele pointed out the very spot upon which he wanted 'Esala to erect his dwellinghouse. There were no other buildings on the land at that stage. Initially they lived in a "shack" but in 1976 a more substantial house was built on the same site and in 1994 the dwellinghouse was again upgraded or substantially rebuilt by one of 'Esala's son-in-laws -- the third defendant, Mahe. That is the main dwellinghouse they still live in today. There is, what was referred to as "a shack" out the back of the dwellinghouse which some of the family apparently live in but for ease of reference I will simply refer to the defendants' main dwellinghouse.

Thus, the 84-year-old first defendant and his family have lived on the land in question continuously since 1975. At present the household comprises of the first defendant, 'Esala; his daughter Mele (the second defendant); her husband Mahe (the third defendant) together with their two children and four other children of 'Esala's deceased daughter.

'Esala's house was the first building on the land. 'Esala said that he had an understanding with Mikaele that eventually Mikaele would make the 30 perches of land around their house available as a town allotment for his ('Esala's) son, Metui Finau, who is presently in New Zealand but that never happened before Mikaele died. 'Esala admitted that he had taken no other steps to acquire title to the land. In cross-examination, 'Esala said, and I accept, that when Mikaele told him to move onto the allotment he said that he "could dwell on the land until death or until the end of the world."

The evidence was that sometime after 'Esala's house was built, and it was probably in 1978/79, the plaintiff's father, Soane Ongolea, also built a house on the allotment between 'Esala's house and the By-Pass road. It is still standing today and it was referred to in evidence as the "plaintiff's house". How Soane came to build a house on Mikaele's land is simply another part of the narrative which was not dealt with in evidence. In all events, 'Esala had no concerns about that other house because he assumed or understood that Mikaele had allocated the 30 perches (or thereabouts) on the Eastern side fronting onto the By-Pass road to Soane but the 30 perches behind that on the western side, upon which his own dwellinghouse stood, had been allocated to his family.

'Esala and his family knew nothing about Mikaele's surrender back in 1993 of the whole allotment of 1 rood 24 perches nor of the plaintiff's application in 1998 for title to the allotment. It was not until 2001 when surveyors were carrying out the survey that the defendants became aware, for the first time, that the plaintiff was claiming title to what they regarded as their land.

For his part, the plaintiff acknowledged that he had been aware of the defendants' house on the allotment since he had visited Tonga in 1995 or 1996 but he told the court that it was not until the surveyors located the boundary stones in 2001 that he realised that the defendants' house was on the allotment he had title to. He then proceeded to give instructions to the defendants to vacate.

When the Assistant Registrar of Lands gave evidence, he acknowledged that the surveyors ought to have alerted the Minister to the fact that there was another dwellinghouse on the land. The Minister was not a party to this litigation but I am quite satisfied, having listened to the Assistant Land Registrar's evidence, that had his attention been drawn to the fact that the rear half of the allotment was occupied by another family and, indeed, that they had been in occupation since 1975, then he would have caused further inquiries to have been made before approving the plaintiff's application for a Deed of Grant.

The final defence witness was 'Esala's 41-year-old married daughter, Mele Fatai -- the second defendant. She said that Mikaele had given the land to her family because her mother was his niece and they had been living on the property now for 28 years. She indicated that she understood from Mikaele's grandson, Felise, that Mikaele had only intended to surrender the front 30 perches of the allotment to the plaintiff and the rear 30 perches was intended to be her family's land. She also said that Felise had made approaches to the Ministry of Lands, Survey and Natural Resources over the matter and he had told the defendants to remain on the property. The fact of the matter, however, is that Felise no longer has any interest in the allotment. His grandfather Mikaele surrendered the land back in 1992/93 and the consent of a future heir is not necessary for the surrender of an allotment under section 54 of the Land Act.

The plaintiff seeks an order evicting the defendants and their families. The defendants seek a declaration that the grant of the allotment to the plaintiff was void because the land was not available for registration and, alternatively, an order that the plaintiff is estopped from evicting the defendants. The general principles applicable to a case of this nature, where a challenge is made to the grant of an allotment, have been considered frequently over the years. If a plaintiff has title to the allotment through a registered Deed of Grant then, until it is shown to the contrary, the court will presume that the register is correct. Registration is final unless it has come about as result of an error of law (ie contrary to the Act), or as a result of fraud, mistake, breach of the principles of natural justice or of a promise made by the Minister.

The defendants do not seek in their pleadings to establish any right to a grant but they challenge the validity of the grant made to the plaintiff and, in the alternative, they seek to rely on the defence of estoppel. The burden of proof rests on the defendants. They are required to call sufficient evidence, in terms of the principles stated above, to show that the grant to the plaintiff ought to be set aside.

At the outset of this judgment, I expressed reservations about the plaintiff's eligibility under the residential requirements of section 50 of the Land Act to be granted the allotment but the evidence before the court is simply not sufficient for me to make a conclusive finding one way or another on this particular aspect of the case and I can take the matter no further.

The defendants claim that the land was not "land available for allotment" in terms of section 50(1) of the Land Act. In their statement of defence, they appear to advance two main grounds for this proposition. First, reliance is made on an alleged verbal grant to the first defendant's son by the landholder in 1975. As was made clear by this Court, however, in Vai v 'Uliafu [1989] Tonga L R 56, it is not possible under the Land Act for there to be a verbal grant of an allotment. Second, the defendants rely on the fact, which has been proven to my satisfaction, that the land in dispute was allocated to their family by the former title holder, Mikaele, in about 1975 and they have been in occupation ever since. Hence, so it is contended, the land in dispute was not "land available for allotment".

A similar situation came before the Land Court in Vai v 'Uliafu (supra). In that case, counsel had argued that the word "available" had to be construed strictly to mean "not already allotted by deed of grant." Webster J. rejected that submission as too restrictive and held that, with the exception of a person in occupation as a squatter, land was not available for allotment if it was occupied. His Honour held that the grant to the plaintiff of an allotment on part of which the defendant had built a house, could not be valid. The grant had been made on a wrong principle in that, as a matter of fact, the land was not completely available as an allotment. The court concluded that the plaintiff did not have legal rights as an allotment holder over the part of the land occupied by the defendant and it refused to grant the plaintiff's prayer for an order for the defendant's eviction.

The defendants have satisfied me that the same situation exists in the present case. I am also satisfied that the grant to the plaintiff of the whole allotment was made by the Minister under a mistake in that neither the plaintiff nor the surveyors appear to have alerted him to the fact that half of the allotment in question was occupied by the defendants. In the plaintiff's application for a grant, the estate holder had declared: "I hereby agree to the grant of the allotment as described above and declare that there is no impediment to prejudice this grant."

The plaintiff actually witnessed the signature of the estate holder, Hon Fakafanua, when he signed the application on 26 July 2001. The plaintiff told the court that within two days of obtaining the estate holder's consent, the survey was carried out and the surveyors had drawn his attention to the fact that the defendants' dwellinghouse was on the allotment. The plaintiff should then have taken steps to correct the misleading statement included in his application but he failed to do so. In the Vai case where a similar omission had been made, the court held that the grant could not be valid because it was made under a mistake in that the Minister was unaware that the land "was not completely available as an allotment."

My findings on the "land available" and the "mistake" issues are, effectively, a complete answer to the plaintiff's claim. The action for an eviction order cannot succeed. In case I am wrong in this regard, however, I turn now to consider the other principal defence of estoppel.

There are two aspects to this defence. First, I do not see how the defendants can rely on the statutory estoppel defence provided for in section 103 of the Evidence Act (CAP. 15). They have not been able to point to any representations made by the plaintiff which caused them to believe that he was content for them to remain in occupation of the land. The second form of estoppel which arises, however, has more substance and it is an equitable estoppel similar to the equity in possession defence recognised by the Court of Appeal in Tafolo v Vete (unreported) Appeal No. 2/98 (judgment dated 7 August 1998) at p.13.

In that case, the Court of Appeal held that equity will recognise and enforce a right to occupy and use property where the person in occupation has acted in reliance upon the representation or the acquiescence of the person having a proprietary interest in the land. The representation in the present case was the one made all those years ago by the title holder Mikaele when he invited the first defendant and his wife to go and live on his land, "until death or the end of the world".

In Inwards v Baker [1965] EWCA Civ 4; [1965] 2 QB 29, [1965] 1 All ER 446, the Court of Appeal held that when created, an equity in possession is binding on subsequent titleholders and thus, in effect, equity permits the person to remain in occupation for life -- see Halsbury, 4th ed. Vol 27 at para 13 (n)3. On the basis of these authorities, I would uphold the equitable defence of estoppel raised by the defendants.

Having found for the defendants, I now turn to consider the appropriate form of relief. I find, on the facts, that up until the time when the survey was carried out at the end of July 2001, the plaintiff believed that his allotment did not include the defendants' dwellinghouse. He told the court that he had first seen the defendants' house when he visited Tonga from the States in 1995 or 1996. I am satisfied that the only reason he took no steps to have his father evict them at that stage (if, as he claims, his father then had some entitlement to the land) was because he thought that the boundary line for the allotment in question ended at some point before reaching the defendants' house. In other words, without knowing the precise measurements, he was content to proceed on the basis that the allotment that had been surrendered to him, and that he subsequently made formal application for, was the land between the defendants' dwellinghouse and the roadway.

I am satisfied on this aspect of the evidence although I am bound to say that, in general, I found the plaintiff's evidence vague and confusing.

He gave evidence, for example, that the allotment in question had been in his father's name since prior to 1978; that the defendants had built their house after his father had taken title and his father had surrendered the land to him (the plaintiff) in the year 2000. The Assistant Registrar of Lands, however, had no record of the land ever having been registered in the father's name.

I mention this matter to indicate the difficulty the court had in trying to dissect any credible testimony from the plaintiff's evidence. It is not as though there were interpretation problems. Although the plaintiff spoke Tongan, he gave his evidence in English with a marked American accent.

In all the circumstances, I consider that the justice of the case can best be met by the making of a similar order to that made by the Land Court in Vai v 'Uliafu (supra). The existing Deed of Grant, Tohi 353 Folio 71 is cancelled and I order the land shown thereon to be resurveyed and subdivided so that, if the Minister is satisfied in other respects that the plaintiff meets the relevant criteria in the Land Act, he may issue a new deed of Grant in the plaintiff's name restricted to the eastern half of the allotment, excluding the 30 perches on the western side of the allotment which the defendants shall have uninterrupted occupation of until the death of the first defendant.

As the Minister was not a party to the litigation, I grant leave, should any problems be encountered in complying with this order, for the Crown to seek directions by way of memorandum. The defendants are entitled to costs to be agreed or taxed.

NUKU'ALOFA: 20 JUNE 2003.

JUDGE