Paul v Tuanai [1994] WSSC 15 (6 December 1994)

IN THE SUPREME COURT OF WESTERN SAMOA
HELD AT APIA

BETWEEN

NORMAN SAMUEL PAUL and PETER MACDONALD PAUL
both of Vepala Company Directors as the Surviving Trustees of the
Eugene Friederich Paul Trust:
Plaintiffs

AND

ILALIO LAUVAO TUANAI Workman,
SEGIO LAUVAO TUANAI, Workman and
SILAO LAUVAO TUANAI, Workman,
PIO LAUVAO TUANAI Workman,
all of Tanumaleko:
Defendants

Counsel: L.R. Vaai for plaintiffs
R.S. Toailoa for defendants

Hearing: 28 July 1994
Judgment: 6 December 1994

JUDGEMENT OF SAPULO, CJ

The plaintiffs in this case are the surviving trustees of the Eugene Friedrich Paul Trust (the Trust). The other trustee of the Trust was Eugene Friedrich Paul himself (Mr Paul). He passed away in 1971 leaving his two sons Peter and Norman, as the surviving trustees of the Trust. I will continue to refer, in this judgment to the two sons of Mr Paul by their first names.

Paul was a most successful businessman in his lifetime. On 19 March 1962 he set up the Trust under his name. The purpose ... Trust provide Paul the maintenance, education and advancement of his grandchildren. He appointed himself and his two sons Peter and Norman trustees. The original trust property consisted of the sum of 1,000 pounds which was deposited with the Bank of New Zealand In Auckland, but the deed of trust contemplated the transfer from time to time of further properties to the Trust.

In 1963 Mr Paul and his sons Peter and Norman purchased from one Brian Cobcroft, a planter, the land which is the subject of the present dispute for 6,000 pounds. The land is situated Tanumaleko, Vailima next to the property of the Carmelite nuns and is about 60 metres from the main road with vegetation obstructing the view from the main road to the land. The evidence shows that the land was transferred to the Trust before Mr Paul died in 1971. So the land now belongs to the Trust and is therefore trust property.

The defendants are the children of the late Lauvao and his wife Paula and have been living on the land since 1969. Lauvao and Paula and their children had previously been living on land belonging to the Ripley family at Vaoala. They were evicted from the Ripley land before the ........ came and lived on the land which is subject of the present proceeding s. There are conflicts between for the plaintiffs and the evidence for the ..... this point on. I will refer first to the plaintiffs' evidence and then to the defendant's evidence as to what follows.

According to Peter, who testified for the plaintiffs, Lauvao and Pauls and their children land in 1969 because of a request from the Carmelite nuns to his mother, the late Mrs Paul, who died in 1986. The request was then passed on by his mother request o his father, Mr Paul. As Mr and Mrs Paul were staunch supporters of the Carmelite nuns, Peter says his mother agreed to Lauvao and Paula staying on the land and render assistance to the Carmelite nuns. This agreement appears to have been passed on by Mrs Paul to the Carmelite nuns. Lauvao and Paula were also not required to pay rent, so no rent was paid. While Mr and Mrs Paul were alive Lauvao and Paula used to send a "umu" (taro and palusami cooked in a Samoan oven) on Sundays to the Pauls.

Peter denies what is asserted for the defendants that Mr and Mrs Paul told Lauvao and Paula that they and their children could live on the land for was long was they wish. He says that during the discussions he had with his father, while his father was alive, his father did not at any time mention that Lauvao and Paula and their. children were to live on the land for was long was they His father also never told him that he allowed Lauvao and After Mr Paul died In 1971, Peter says that Lauvao and Paula continued to live on the land on requests his mother to was one of the surviving trustees. Out of respect for his mother, he allowed the situation to continue.

Then Mrs Paul dies in 1986. In October the same year the for the plaintiffs wrote to Lauvao and Paula that the family wanted to use the land, and gave them three years to find another place to mot to. After letter was sent to Lauvao and Paula, they came and saw Peter and requested him if they could buy the land. Peter replied the land could not be sold was it was trust land. According to Peter, Lauvao and Paula did not at that meeting with him say anything about Mr and Mrs Paul haying told them that they could live on the land for was long was they wish. Then In 1988 Paula died. She is not buried on the land. On 14 January 1991, the plaintiffs' solicitor again wrote to Lauvao referring to the letter sent in 1986. In this second letter, the plaintiffs' solicitor again requested Lauvao for him and his family to vacate the land giving them another twelve months to do so.

By letter dated 9 March 1991, Lauvao wrote to both Peter and Norman saying that he understood that the land was "on the children" and that "he believed all the matters was explained to him". However, he requested to buy half an acre of the land when it is subdivided was there was nowhere else for his family to go to. By letter of 8 October 1991, Norman wrote to Lauvao declining his request, stating the reasons for the request being declined. Then on 27 March1992, the plaintiffs' solicitor again wrote to Lauvao asking him to vacate the land with his family and threatening eviction proceedings. Lauvao did not reply to the letter. He has since died without making a reply to that letter. Lauvao is not buried on the land. The present proceedings have brought by the plaintiffs to evict the children of Lauvao and Paul who are still living on the land. Lauvao and Paula's children are the defendants in these proceedings.

The defendants have defended the plaintiffs' actions and are counterclaiming against the defendant asking for compensation for their house which was built on the land in and for crops they have the plaintiff's evidence he had made numerous visits to the land on a cyclones. These were cyclone Ofa at cyclone Vai in early December 1991. He made one last visit after the cyclones. On that visit, Peter says, he saw an open roof on the land which could easily be removed, was built on a concrete foundation which land when it was purchased from Brian Cobcroft. In saw a few bananas growing around the house; there coconuts, but there had always been coconuts He also did not observe any plantation on the ............. . The plaintiffs deny they should be compensation to the defendants for their house, its 1981, its relocation, grown on the land. I will continue with relating to the counterclaim. Peter says periodic basis before the beginning of 1990 He made one last visit after the cyclones. On that visit, Peter says, he saw an open house with a tin roof on the land which could easily be removed. The house, he says, already on the 1963. He also saw a few bananas growing around the house; there were also scattered growing on the land. He also did not observe any plantation on the land or a permanent home. The plaintiffs deny they should be liable for any compensation to the defendants for their house, its relocation, or for their crops.

The evidence for the defendants was given by Senio and Ilalio, two of the children of the late Lauvao and Paula. According to Senio, his parents and family had previously been living at Vaoala on Ripley land. When they were evicted from the Ripley land, his parents looked for a land to live on as they did not own any land. So his parents asked Mr and Mrs Paul if they could live on the present land that was how they came to live on the land which is the subject of the dispute. That was in 1969 when he was only 12 years old.

Senio says that when his parents moved onto the land, it was bush-land with some cocoa and coconuts growing on it. His family looked after the land and cultivated it. They also built a shelter to live in. He also says that there was no condition for his family staying on the land. What he recalls is that they were to stay on the land and look after it. He had also asked his mother, Paula, when she was alive about the land, and she said they were to live on the land and look after it. He further says that after his family had lived on the land for some time they decided to build a house on the land in 1981.Ther e was no objection from the owners to that house being built on the land. He also knows that his parents at one time requested Peter and Norman to let them buy the land but the reply was no. Both his parents are now dead and are not buried on the land.

Senio further says that the house his family built in 1981 is a corrugated iron roof open house with poles and a lean-to structure adjoining the house from the back. The house is built on a concrete foundation. It cost $20,000 to $30,000 to build the house. His family also planted crops like coconuts, taros, taamu and yams on the land. At the time of these proceedings, his family had three to four acres planted in bananas and 1,000 taamu. They also planted about 30 coconuts. He further says that there are about 17 breadfruit trees growing on the land, but it is not clear whether his family planted all those breadfruit trees or whether some of the breadfruit trees are part of the natural growth of the land.

The defendants are therefore counterclaiming for $30,000 for the house, $12,000 for its relocation and reconstruction, and $5,000 for crops; a total claim of 47,000.

Ilalio, a younger brother of Senio, also testified for the defendants. He says that his parents and family had previously lived on Ripley's land at Vaoala. When they were evicted from that land, they had no land of their own. So they came and lived on the Pauls' land in 1969. He says that his understanding of the situation is that his family was to live on the land for was long was they wish was the Pauls had allowed them to live on the land for was long was they wish. He says that when his mother, Paula, was alive she went and saw the late Mr Jackson, who was then a solicitor practising In Apia. Mr Jackson told his mother that Mr Paul had told him (Mr Jackson) that Paul and her family could live on the land for was long was they wish.

Ilalio also says that when his family moved onto the land in 1969 it was covered in hatsh. The 7 built a shelter to live in. They worked on the land and no compensation was received from the Pauls for that work. In 1981 his family built their present house on the land. He does not know whether his parents sought permission from the Pauls. He also does not know whether the plaintiffs were aware of the house when it was built. All he knows is that no one objected to the building of the house. The cost of the house was $19,000 to $20,000. The house was damaged during cyclone Ofa in early 1990 and cyclone Vai in early December 1991 and was repaired. His family also planted crops like bananas, taamus, taros, lemons and breadfruit trees on the land for their own needs and consumption. His parents had also looked after the grounds of the Carmelite nuns. There were no more taros growing on the land at the time of these proceedings because of the current taro blight.

Malaki Tuiulupona, a qualified valuer, was also called by the defendants to testify was to the value of the crops and the house on the land. He inspected the land on 15 March 1993 and has submitted to the Court his valuation report based on that inspection. He says he found about 3 1/2 acres of the land being planted in taros which should have been harvested by the time these proceedings came before the Court in July. Now deciding the establishment costs of $3,000 for the taros as stated in the valuation report, the remaining balance for the costs of the bananas and coconuts is $2,600. The valuer also gave $20,000 as the depreciated replacement value for the house.

Before I resolve the conflicts in the evidence, I will deal with the relevant law. Counsel for the defendants submitted that the plaintiffs are estopped from taking action to recover vacant possession of the land form the defendants. He referred to Crabb v Arun District Council [1975] EWCA Civ 7; [1975] 3 All ER 865. That is a case on proprietary estoppel. The true basis of the submission by the counsel for the defendants is therefore proprietary estoppel. This Court dealt with the question of proprietary estoppel in the case of Rosita Meredith v Pualagi Pa'u [1994] in a judgement delivered on 5 May 1994 in relation to a motion to discharge an interlocutory injunction. It was decided in Rosita v Meredith v Pualagi Pa'u that for the purpose of Western Samoan law, proprietary estoppel may not only be used as a defence to an action, it may also be used as the basis for a cause of action. It is not restricted to a purely defensive role. Most of the authorities which confirm that is the true position are cited in the case I have just referred to. I need not refer to all those authorities again in the case.

It would appear to me from the way the present case for the defendants was conducted, that in their statement of defence they rely on the proprietary estoppel as a defence, and in their counterclaim they rely on proprietary estoppel as a cause of action. That is quite permissible because proprietary estoppel may not be used as a sword and not merely as a shield. Traditionally, proprietary estoppel arises by way of acts encouragement or by way of acquiescence on the part of the person against whom the estoppel is sought to be fixed. It gives rise to an equity in the disputed property in the person who is relying on proprietary estoppel if he succeeds. It is for the Courts to decide how that equity is to be satisfied in the circumstances of each particular case, whether it be by a way of a conveyance to the person who has successfully raised the estoppel, or by way of an equitable charge or lien, or whichever way the equity in the case requires: see for instance Chambers v Pardoe [1963] 3 ALL ER 552, 555.

However, in Rosita Meredith v Pualagi Pa'u the Court left open an important issue which was not raised in that case but was raised in the judgment of Scarman LJ in Crabb v Arun District Council [1975] EWCA Civ 7; [1975] 3 ALL ER 865 relied on by counsel for the defendants in this case. The issue is whether propriety estoppel, estoppel by encouragement and estoppel by acquiescence are now subsumed under a broader principle which is described as what is "unfair or unjust" or "unconscionable" or "inequitable" in the circumstances. To see how the common law has arrived at that position, I refer to the relevant authorities.

The principles, in this field of propriety in this field of propriety estoppel seem to have come down from two old English cases, namely, Dillwyn v Llewlyn [1862] EWHC Ch J67; [1861-73] ALL ER Rep. 384 and Ramsden v Dyson [1866] LR, HL 129. Lord Kingsdown in a dissenting judgement of facts of the case rather than on the applicable law said, in what has to come down in an often quoted passage in the area:

"The rule of law applicable to the case appears to me to be this: If a man, under a verbal agreement with a landlord for a certain interest in land, or, what amounts to the same thing, under an expectation , created or encouraged by the landlord, that he shall have an interest , takes possession of such land, with the consent of the landlord, and upon the faith of such promise or expectation, with the knowledge of the landlord, and without objection by him, lays out money upon the land, a Court of equity will compel the landlord to give effect to such promise or expectation. This was the principle of the decision in Gregory v Mighell [1811] EngR 580; (18 Ves 328), and, as, I conceive, is open to no doubt."

Although that was a case of landlord and tenant, the principle laid down in that passage by Lord Kingsdown came to form the basis for the ingredients of propriety estoppel applicable to other different situations.

The principle enunciated by Lord Kingsdown was analysed in detail by Fry J in Willmott v Barber [1880] UKLawRpCh 183; [1880] 15 Ch D 96 where five probanda are stated as guidelines to the factual matters to be established for the successful operation of proprietary estoppel. At page 106 Fry J said:

It has been said that the acquiescence which will deprive a man of his legal rights must amount to fraud and in my view that is an abbreviated statement of a very true proposition. A man is not to be deprived of his legal rights unless he has acted in such a way as would make it fraudulent for him to set up those rights. What, then, are the elements or requisites necessary to constitute fraud of that description? In the first place the plaintiff must have made a mistake as to his legal rights. Secondly, the plaintiff must have expended some money or must have done some act (not necessarily on the defendant's land on the faith of his mistaken believe. Thirdly the defendant, the possessor of the legal right, must know of the existence of his own right which is inconsistent with the right claimed by the plaintiff. If he does not know of it he is in the same position as the plaintiff and the doctrine of acquiescence is founded upon conduct with a knowledge of your legal rights. Fourthly, the defendant, the possessor of the legal right, must know of the plaintiff's mistaken believe of his rights. If he does not, there is nothing which calls upon him to assert his own rights. Lastly [if I may digress, this is the important element as far as this appeal is concerned], the defendant, the possessor of the legal right, must have encouraged the plaintiff in his expenditure of money or in other acts which he has done, either directly or by abstaining from asserting his legal right"

Although the emphasis in this passage is on acquiescence the five probanda set up by Fry J have also been applied to proprietary estoppel by encouragement: see also Spencer Bower and Turner, Estoppel by Representation, 3rd ed. 287. The five probanda had often been applied as fixed guidelines in early decisions, however, recent decisions have not adhered strictly to those five probanda. This does not mean that the five probanda set out by Fry J are to be totally ignored as serving no useful purpose. They may still offer useful, but not determinative or exhaustive, factors to be considered for the operation of the doctrine of proprietary estoppel. The trend now is towards a more broad and flexible approached based on "unconscionability".

This trend may be seen in the cases which follow. In the judgement of Scarman LJ in Crabb v Arun District Council [1975] 3 ALL ER 965,877, His Lordship said:

"The Court therefore cannot find an equity established unless it is prepared to go so far as to say that it would be unconscionable and unjust to allow the defendants to set up their undoubted rights against the claim being made by the plaintiff"

In the next case of Shaw v Applegale [1978] 1 ALL ER 123, Buckley LJ put the test of unconscionability in these words:

"So I do not, as at present advised, think it is clear that it is essential to find all five tests set out by Fry J literally applicable and satisfied in any particular case. The real test, as I say, I think must be whether on the facts of the particulars case the situation has become such that it would be dishonest, or unconscionable, for the plaintiff, or for the person having the right sought to be enforced, to continue to seek to enforce it".

And in the same case Goff LJ at page 132 put the test of unconscionability in these words:

"But for my part, I share the doubts entertained by Jenkins LJ in Electrolux Ltd v Electrix Ltd whether it is necessary in all cases to establish the five tests which are laid down by Fry J, and I agree that the test is whether, in the circumstances, it has become unconscionable for the plaintiff to reply on his legal right".

In Taylor Fashion Ltd v Liverpool Victoria Trustees Co Ltd [1981] 1 ALL ER 897, 915-916. Oliver J in a comprehensive judgment stated the position in these words:

"Furthermore the more recent cases indicate in my judgment that the application of the Ramsden v Dyson principle (whether you call it proprietary estoppel) estoppel by acquiescence or estoppel by encouragement is really immaterial requires very much broader approach which is directed to ascertaining whether, in particular individual circumstances, it would be unconscionable for a party to be permitted to den that which, knowingly or unknowingly, he has allowed or encouraged another to assume to his detriment rather than to inquiring whether the circumstances can be fitted within the confines of some preconceived formula serving as a universal yardstick for every form of unconscionable behaviour.

So regarded, knowledge of the true position by the party alleged to be estopped becomes merely on of the relevant factors (it may even be a determining factor in certain cases ) in the overall inquiry."

In Amalgated Investment v Texas Commerce [1981] 1 All E.R 923, Robert Goff J accepted the broad principle based on unconscionability as stated by Oliver J. When Amalgamated Investment's case went to appeal to the Court of Appeal as reported in [1981] 3 All ER 577, 584-585, Lord Denning MR said:

"The doctrine of estoppel is one of the most flexible and useful in the armoury of the law. But it has become overloaded with cases. That is why I have not gone through them all in this judgement. It has evolved in the last 150 years in a sequence of separate developments: proprietary estoppel, estoppel by representation of fact, estoppel by acquiescence and promissory estoppel. At the same time it has been sought to be limited by a series of maxims: estoppel is only a rule of evidence; estoppel cannot give rise to a cause of action; estoppel cannot do away with the need for consideration, and so forth. All these can now be seen to merge into one general principle shorn of limitations. When the parties to a transaction proceed on the basis of an underlying assumption (either of fact or of law, and whether due to misrepresentation or mistake, makes no difference), on which they have conducted the dealings between them, either of them will be allowed to go back on that assumption when it would be unfair or unjust to allow him to do so. If one of them does seek to go back on it, the Courts will give the other such remedy as the equity of the case requires."

The Master of the Rolls then applied his "general principle shorn of limitations" to the facts and said:

"And the judge speaks of it as being 'unconscionable' for the representor to go back on his representation. In those phrases the judge is applying the general principle of estoppel which I have stated."

In Attorney General of Hong Kong v Humphrey's Estate (Queen's Gardens) Ltd [1986] UKPC 58; [1987] 2 ALL ER 387, Lord Templeman in delivering the judgment of the Privy Council in that case seems to have accepted the broad approach based on unconsionability stated by Oliver J in Tayor Fashions case.

It is thus clear that the test of unconscionability for propriety estoppel now finds support in several English authorities. In New Zealand that test has been recognised and applied in several decisions like Andrew v Colonial Mutual Life Assurance Society [1982] 2 NZLR 556, Wham-OMFC Co v Lincoln Industries [1984] 1 NZLR 641 and Stratulatos v Stratulatos [1988] NZHC 467; [1988] 2 NZLR 424. In Westland Savings Bank v Hancock [1987] 2 NZLR 21, Tipping J after referring to the English authorities which favour a more broad and flexible approach to proprietary estoppel based on unconscionability, and Lord Denning's approach based on what is "unfair and unjust", suggested an approach based on what is "inequitable". Essentially these must be only slightly different ways of putting what is basically the same idea. There may be subtle differences in shades of meaning between what is "unconscionable", what is "unfair", and what is "inequitable". But they convey essentially the same basic idea which equity is trying to express. For this case, I respectfully adopt the terms "unconscionable" and "unconscionability" as the labels for the broad approach to be adopted. The implication of this broad of approach are undoubtedly far reaching and the task for the Courts would be to work out in due course how far it goes.

After saying all that, I come back to the question whether the doctrine of proprietary estoppel has been subsumed under a broader approach based on unconscionability. I think the answer must be no. Despite what Lord Denning MR says in Amalgamated Investment's case about proprietary estoppel and other forms of estoppel being merged into one general principle shorn of limitations, which he described as "what is unfair and unjust", it is clear from the majority of the cases that that is not what has happened. What has really happened is that the Courts have moved away from strict adherence to the five probanda expressed by Fry J in Willmott v Barber [1880] UKLawRpCh 183; [1880] 15 Ch D 96 as the basis for the operation of proprietary estoppel to a more broad and flexible test based on unconscionability for determining the application of the doctrine of proprietary estoppel. But the new test, although more broad and more flexible then the five probanda expressed by Fry J was not subsumed the doctrine of proprietary estoppel.

Having settled the approach to be adopted to the question of proprietary estoppel in this case, I turn now to resolve the conflicts in the evidence and make appropriate findings of fact. I think the crucial conflict in the evidence to be resolved is whether the defendants parents, Lauvao and Paula, were allowed by the Pauls to live on the land and to render assistance to the Carmelite nuns as testified by Peter or whether they were allowed to live on the land for as long as they wish as testified by Ilaio. After giving the most careful consideration to the whole of the evidence, I have come to the view that the evidence of Peter is more convincing and credible than that of Ilalio.

It is to be noted that before Lauvao and Paula and their children came onto the land in dispute, they had been living on Ripley's land at Vaoala. When they were evicted from that land, they had no land of their own to move to. But they needed another land to live on. There is no evidence that Mr and Mrs Paul needed Lauvao and Paula or needed anyone else to occupy their land. So when Lauvao and Paula and their children occupied the land in 1969, a need on their part for another land to live on was satisfied. Furthermore, it is clear that during all the time that Lauvao and Paula lived on the land, they did not render any service of significance to Mr and Mrs Paul so as to raise an interference that as a result of such services, the Pauls could, out of a sense of gratitude, be willing to give away the use and possession of their land to the Lauvao family to live on for as long as they wish and thereby deny to themselves (the Pauls) the use and possession of their land for what could turn out to be a very long time. It is true that Lauvao and his family gave "umu" on Sundays to Mr and Mrs Paul when they were alive. But I do not regard such services as sufficiently significant to satisfy this Court that that was a reason why the Pauls would give away the use and possession of their land for a period of time which would amount to many, many years. In any event, the defendants do not rely on any service by their parents to the Pauls as the reason for their occupation of the land for what they claim to be "as long as they wish". It also appears from the evidence that if Lauvao and Paula had rendered service to anyone, it was not to the Pauls but to the Carmelite nuns whose grounds they looked after. Whether they received any remuneration from the Carmelite nuns for such service does not appear form the evidence.

It is also clear that Lauvao and Paula and their family lived on the land free of rent or of any other charge. Apart from living on the land, they also made use of the land by planting on it crops for their own needs and consumption, and not for the Pauls or anyone else. So if anyone had really benefited from Lauvao and Paula's occupation of the land, it is themselves and perhaps to some extent the Carmelite nuns, but certainly not the Pauls. So I see no reason or cause for the Pauls to confer such an additional benefit if allowing Lauvao and Paula and their children to live on the land for as long as they wish when such conditional benefit could lead to serious detriment for the Paul family without any corresponding benefit to the Pauls. Thus I find Ilalio's evidence on this part of the case as very unconvincing.

As it will be recalled, it also appears from the evidence of Senio, that the land belongs to the Pauls and when he raised the question of the land with his mother when she was alive, her reply was that they were to live on the land and look after it. That is different from Ilalio's evidence as to what the defendants mother told him. From the evidence of Peter it also appears that after the plaintiff's solicitor wrote to Lauvao and Paul in 1986 requesting them to vacate the land at the end of three years, Lauvao and Paula came and saw him if they could purchase the land; he did not accede to the request as the land was trust land. In my view, if it is true that Lauvao and Paula had been told by Mr and Mrs Paul that they could live on the land for as long as they wish, that was the time to raise the issue, and to raise it strongly, with Peter when they saw him in 1986 after receiving the letter from the plaintiff's solicitor to vacate the land at the end of three years. But there was no objection from Lauvao and Paula that Mr and Mrs Paul had allowed them to live on the land for as long as they wish.

Then in 1980 the plaintiffs' solicitor wrote to Lauvao referring to the letter of January 1980 and telling him and his family another twelve months to vacate the land. Again Lauvao (Paula had died by then) did not raise any objection that Mr and Mrs Paul had told him and his late wife that they could live on the land for as long as they wish. Instead Lauvao wrote to Peter and Norman saying that he knows that the land was "on the children" and that "he believed all matters as explained to him" but he wanted to buy half an acre of land when it is subdivided. The reference here to "his children" means the grandchildren of Mr and Mrs Paul. Here again I would have expected Lauvao to raise with Peter and Norman in his letter the question of any permission given to them by Mr and Mrs Paul to live on the land foe as long as they wish if, in fact , such permission was given. But Lauvao did no such thing. Then in 1992 when the plaintiffs solicitor wrote to Lauvao again asking him to vacate the land with his family, there was no reply from Lauvao; and until he died there was still no reply. Here again, I have expected Lauvao to raise objection with Peter and Norman if, in fact he and his family had been allowed by the Pauls to live on the land for as long as they wish. So on all these occasions when Lauvao was asked to vacate the land, he made no mention that the Pauls had allowed him and his family to live on the land for as long as they wish. I therefore find Ilalio's evidence about his parents and family being allowed by the Pauls to live on the land for as long as they wish very unconvincing.

Even what Ilalio says that his mother Paula, when she was a live had told him that she Paula, had been told by the late Mr Jackson, a solicitor, that he, Mr Jackson, had been told by Mr Paul and Lauvao and his family could live on the land for as long as they wish is unconvincing. The reason is that when Peter met with Lauvao and Paula in 1986 after receiving the letter of 14 January 1986 from the plaintiffs' solicitor to vacate the land at the end of three years, Paula made no reference to such a conversation with the late Mr Jackson. Then again in 1991 and 1992 after Lauvao was sent further letters by the plaintiffs' solicitor to vacate the land, there was also no mention of a representation by Mr Jackson to Paula that her family could live on the land for as long as they wish. One would have expected that if Mr Jackson had in fact made such a representation to Paula as claimed by Ilalio; that representation would have been raised by Lauvao and Paula with the plaintiffs after they were asked to vacate the land. But nothing of that kind happened. But even if it is true that such a representation was made, it was not made by Mr Paul to Paula so as to be binding on Mr Paul, but was made by Mr Jackson to Paula. There is no evidence that Mr Jackson at the time he made the representation was acting as agent for Mr Paul, if indeed such representation was made. In all, I find Ilalio's evidence lacking in conviction and credibility. I accept the evidence given by Peter on this aspect of the case that it was the Carmelite nuns who requested his mother for Lauvao and Paula to live on the land, as Mr and Mrs Paul were staunch supporters of the Carmelite nuns, Lauvao and Paula were allowed to live on the land supported the Carmelites. I find this evidence much more convening and credible.

I must reiterate at this junction that Peter says about Lauvao and Paula being allowed to live on the land and render support to the Carmelite nuns appears from the evidence to have been passed on by Mrs Paul to the nuns and not to Lauvao and Paula. Whether Lauvao and Paula were aware that they were to live on the land and support the Carmelite nuns is obscure from the evidence. However, the evidence given for the defendants clearly suggests that Lauvao and Paula were not aware of what Mrs Paul might have passed on to the Carmelite nuns, for the defendants maintain throughout that their parents and family were allowed to live on the land for as long as they wish and not on any condition of rendering support to the Carmelite nuns. Likewise, on the three occasions that Lauvao and his family were asked to vacate the land, there was no mention by Lauvao and Paula that they had been allowed to live on the land and render support to the Carmelite nuns so as to show that they were aware of such a condition. In any event, both Lauvao and Paula have now passed away, so that if ever they were aware of such a condition (and the defendants' evidence show they were not) the condition no longer applies to them.

From the whole of the evidence, I am satisfied that at all times Lauvao and Paula and there family were living on the land belonging to the Paula because of the request by the Carmelite nuns to Mrs Paul to let Lauvao and Pauls live on the land they were not mistaken as to the ownership of the land. Nor were they led of encouraged by the Pauls to believe that they were to occupy and use the land for as long as they wish. So if they expended money and labour on the land without any reasonable belief or expectation that they will be allowed to live on the land for as long as they wish, and they were not led or encouraged by the Paul into such a belief or expectation, then I see no unconscionability on which they can raise an equity against the Pauls. It follows that proprietary estoppel does not arise to stop the plaintiff from enforcing their rights.

They have had the use and occupation of the land since 1969 free of rent. Any crops they had planted on the land were really for their own benefit and consumption. The taamu, bananas, taros and yams, and possibly the lemons, growing on the land at the time of the hearing of this case are short term crops and must have been planted after January 1986 when the plaintiffs' solicitor first wrote to Lauvao and Paula to vacate the land. Clearly the doctrine of proprietary estoppel cannot operate against the plaintiffs, if after the plaintiffs had asserted their rights in clear and unmistakeable terms, the defendants continue to plant crops or even make improvements, on the land in defiance of that assertion. For the defendants to go on and plant crops, or even make improvements, on the land after the clear assertion of the plaintiffs rights to the land is a risk the defendants have brought on themselves for which the plaintiffs should not be liable. The same is the true legal position if in 1991 and 1992, after the plaintiffs continued to re-assert their rights, the defendants continued to plant crops or made improvements on the land. For any crops grown, or any improvements made, on the land by the defendants after the assertion of the plaintiffs' rights is a risk the defendants have to bear without the plaintiffs being liable to compensation. At least the defendants should remove their crops or any improvements they have made without requiring the plaintiffs to pay for them. So in my view, proprietary estoppel cannot arise to stop the plaintiffs from bringing the present action to enforce their rights as there is nothing unconscionable about them bringing the present action.

The coconuts are long term crops but there is no evidence as to when the defendants planted the thirty or so coconuts for which they are claiming compensation. The establishment costs for the coconuts is $600. Given that the defendants' family have had free occupation and use of the land for about 25 years, I do not propose to order the plaintiffs to pay compensation for the thirty or so coconuts claimed by the defendant. After all the coconuts have been planted on the Pauls' land for the benefit and consumption of the defendants' family without any payment for the use of the land. I also have doubts whether the plaintiffs would want to have the coconuts. However, I do realise that a coconut cannot be removed without destroying it.

Now the house that the defendants family built on the land in 1981 was for their occupation and use, for everyone needs a house to live in. I must say that the defendants' family knew all that times that the land belongs to the Pauls, they knew the circumstances in which they were occupying the land, and they went ahead and built on the land the house they wanted. There is also no evidence to show that the plaintiffs or any other member of the Paul family was aware of the building of the house when it was built. In fact Ilalio's evidence suggests that the Pauls were not aware. Without such knowledge, the plaintiffs cannot be said to have encouraged or acquiesced in the building of the house so as to raise an estoppel against them. Even without other evidence, I think the building of the kind of house which was built by the defendants family in 1981, can be explained on the basis that it was to fulfil a human need to have decent roof over one's head, rather than on any belief on the part of the defendants family that they were to live on the land for as long as they wish. It is difficult to accept that the defendants family would tolerate continuing to live in their original shelter if during their stay on the land they can afford to build a better habitable structure on live in. The evidence by better is that the last time he revisited the land after the cyclones, he saw an open house with poles which could be easily remove. But even he was mistaken as in his observations regarding the house, I am still of the view that proprietary estoppel does not arise in this area.

I also have serious reservations about the plaintiffs being liable fro any structural repairs made to the house after it was damaged by cyclone Ofa at the beginning of 1990 and by cyclone Val in early December of 1991. The reason is that by those times the plaintiff, through their solicitor, had already asserted their right to the land in clear and unmistakeable terms. So for the defendants and their family to make structural repairs to the house with full knowledge of the assertion by the plaintiffs of their rights to the land is something for which the defendants should carry the burden without the plaintiffs being liable for the outlay of expenditures on the repairs. Those repairs must now form part of the house for which compensation is sought by the defendant.

I must say that one is not without sympathy for the defendants and their situation. However, looking at the facts objectively, and applying the relevant principles of law, I cannot say that it is unconscionable for the plaintiffs to bring the present action to enforce their rights as to raise proprietary estoppel against them. If it was unconscionable for the plaintiffs to bring this action to enforce their rights, equity would have come in true to form and substance and apply the doctrine of proprietary estoppel to vest and equitable interest in the defendants and prevent the plaintiffs from enforcing their rights. But there is no unconscionability to call for the intervention of equity in this case.

The counterclaim is therefore dismissed and the claim succeeds. Accordingly judgment is given for the plaintiffs. As the defendants would need time to find another place to move to, I will make the order that the defendants and their family are to vacate the land and to remove therefrom their house and short term crops within three months from today. Long term crops such as coconuts and breadfruit trees which cannot be removed without destruction are to remain on the land and are not to bee removed.

The parties are to file memorandum as to costs within seven days if they wish to do so.

CHIEF JUSTICE