IN THE LAND COURT OF TONGA
NUKU’ALOFA REGISTRY

LA 18 of 2023

BETWEEN:			

‘ASAELI NIU’ILA aka TEVITA KAULAMATOA
Plaintiff

AND:				
1. TELESIA FILIMOEMAKA
2. SIONE VAKOFE FILIMOEMAKA
Defendants

JUDGMENT

Before:	Hon. Justice p tupou kc
		HON. LAND ASSESSOR FAIVA TU’IFUA
Counsel: 	Mr S. Fili for the Plaintiff
	Miss Fanga Afu/ Mrs Fa’anunu for the Defendants	
Date:	18 June, 2025

BACKGROUND
1.	This action is in respect of a town allotment registered to the Plaintiff, ‘Asaeli Niu’ila also known as Tevita Kaumalatoa situated at Niutoua. It is presently occupied by the Defendants and the Plaintiff in this proceeding seeks to evict them. 

2.	The Writ and Statement of Claim was filed on 24 October, 2023. The Defendants filed their statement of Defence on 12 January, 2024 and subsequently an amended statement of defence and counterclaim which was approved on 2 April, 2024. No defence was filed by the Plaintiff in respect of the Second Defendant’s counterclaim and no steps had been taken by the Second Defendant to request a separate hearing to formally prove his counterclaim. 

3.	It is noted that the counterclaim repeats issues already raised in the statement of claim except for the question of damages. The proceeding has been conducted by the parties as if all issues raised including that in the counterclaim is dealt with during this trial. This judgment will deal with the matter accordingly. 
The Land and the Parties
4.	The subject town allotment is best described under Deed of Grant registered on Book 76 Folio 86 consisting of 1r 07.5p and duly registered on 29 November, 1966 (“the Land”). The Plaintiff built a house on the Land and lived there with his wife and children. 

5.	The Plaintiff’s neighbour was his close relative, Tengage Filimoeaka (“Tengange”). Tengange was married to Kesaia Filimoeaka (“Kesaia”) with an only son, Sione Vakofe Vilimoeaka also known as Tonga (“Tonga”), the Second Defendant.
 
6.	In 1987, when the Plaintiff migrated abroad with his family, he permitted Tengange and his family to occupy his Land and house on conditions. 

7.	Tengange and Kesaia are now deceased. The Second Defendant married Sia Filimoeaka, the First Defendant and they currently occupy the house and the Land of the Plaintiff. 

8.	The Plaintiff has requested the Defendants vacate his Land and house. The Defendant ignored his request and the Plaintiff commenced these proceedings. 

The Evidence
Agreed Facts
9.	It was common ground that the Plaintiff is the registered holder of the subject town allotment and is the owner of the house erected on it. He is 96 and resides in Wellington.

10.	The Land was originally registered in Tengange’s name. The Plaintiff stated it was previously held by his adoptive father who did not produce an heir and it was agreed that it be registered to Tengange for the purposes of splitting it between them when the Plaintiff married. 

11.	The Plaintiff was a teacher by profession and held postings in other villages and the outer islands. When the Land was registered in his name in 1966, he and his wife built a house and raised their two children there.   

12.	By 1987 the Plaintiff’s children had migrated overseas and after he retired, he and his wife followed them abroad. 

13.	As they were migrating, the Plaintiff gave Tengange and his wife Kesaia permission to move in and occupy his house which had “better utilities”. The Second Defendant was about 2 at the time. 

14.	The conditions of the agreement were that Tengange and his family will stay free of rent but were expected to maintain the Land and the house. 

15.	The Plaintiff visited several times between 1992 to 1995. He observed the house was in disrepair and made it clear to Tengange that repairing the house was his responsibility and he did not intend to make any contribution for that purpose.

16.	The Second Defendant said that Tengange renovated the house in 1996. 
 
17.	Tengange passed away in 2006 or 2007. The Second Defendant and his mother remained on the Land and house. 

18.	On or around 2017- 2018, the Plaintiff’s daughter, Vala engaged a builder to assess costs for renovating the house. The builder recommended the house be demolished due to its condition at the time. 

19.	Kesaia died in 2021 and the Second Defendant continued to reside on the Land and house with his family. 

20.	The Plaintiff say that these proceedings have been triggered by the Defendants’ failure to maintain the house and the Land, allowing both to fall into disrepair. Additionally he had invited third parties to enter into occupation without his knowledge. The state of the Land was raised to the Plaintiff’s attention by the town officer of Niutoua.

21.	The Defendants accept that in a letter of 31 August, 2023, the Plaintiff wrote to notify them he was ending the permission for Tengange and family to reside in his house without rent. The Plaintiff required them to move in order for his children to clean and renovate the house.  The Defendants refused to move.

22.	The Plaintiff engaged legal representation. His lawyer sent the Defendants a demand on 8 September, 2023 giving them 7 days to vacate the property or face legal action for trespass. The Defendants remained on the Land and house refusing to move. 

Disputed Facts 
23.	The Second Defendant claims that on or about 2000 the Plaintiff promised Tengange that he would return the Land to him and Kasipa, the Plaintif’s heir will return to Tonga to complete the transfer. The Second Defendant claim he was present and heard this conversation.

24.	In contrast, Tevita ‘Aisea (“Tevita”), on behalf of the Second Defendant told the Court that when the Plaintiff visited in 2000. One evening, he was at dinner with Tengange, his wife and the Plaintiff when the Plaintiff told Tengange not to worry because he will give the Land back to him and his son because Kasipa, had no heir and will never return to Tonga. 

25.	Tevita was asked where the Second Defendant was when this discussion occurred, Tevita said the Second Defendant was not there, he had gone to the shop.

26.	A similar claim is said to have occurred during a family meeting in New Zealand. The Second Defendant called Sione Pohahau (“Sione”), another relative, who said that in January of 2000, he was present at a family meeting in New Zealand and heard the Plaintiff announce that he would return the Land to Tengange and the Second Defendant as it was rightfully theirs. 

27.	Both Tevita and Sione told the court that they spoke to the Second Defendant after they heard the Plaintiff was taking him to court and offered to provide evidence as to what they heard. 

28.	The Plaintiff denies he made any promises to return the Land directly to Tengange and Kesaia or at a family gathering in New Zealand.

29.	The Plaintiff claim that when Vala visited between 2017 -2018, Kesaia allowed her to do as she liked. In contrast, the Second Defendant stated that Kesaia was not happy with Vala but he, the Second Defendant allowed her to carry on. 

Submissions
30.	Counsels for the parties filed helpful submissions. 

31.	Mr. Fili for the Plaintiff argued that the permission granted to the Second Defendant’s parents terminated upon their death. Secondly, that the letters of 31 August, 2023 and 8 September, 2023 to the Defendants ended his permission for them to occupy the Land and house. Lastly, that no specific licence was granted in favour of the Second Defendant. 

32.	For the Defendants Miss Afu submitted the issues to be determined were:
	a)	whether the Defendants’ occupation of the Land and house was lawful? 
b)	whether the Plaintiff promised his father and a family gathering in New Zealand that he would surrender the Land in order that it is returned to the Second Defendant and his father?
c)	whether as a result of the Second Defendant’s reliance on the Plaintiff’s promise he spent an amount of $47,800 on the Land and house?
d)		whether the Plaintiff should be estopped from excercising his rights over the Land and house as a result? 

Was the Defendant’s occupation of the Land and house lawful?
33.	It was accepted that the Plaintiff gave the Defendant’s parents’ permission to live in his house and on his Land. The Defendant was 2 and moved to the property with his parents.  
34.	At this point, clearly, the Second Defendant’s parents were not moving onto the Land under a grant, a lease or any form of interest on the Land but under a right to occupy with the permission of the Plaintiff.  In other words they were mere licensees terminable at any time by the Plaintiff. 
35.	I find on the evidence, that the agreed conditions between the Plaintiff and the Second Defendants’ parents were, to occupy the Land and house without rent on the condition that they keep and maintain the same. 
36.	For the Defendants, Miss Afu submitted that even after Tengange and Kesaia’s death, the Plaintiff was aware of the Second Defendant and his family’s continued occupation of the Land and house and did nothing about it. The Plaintiff did not dispute the Defendants’ occupation of his Land. That does not necessarily alter the position between the parties. It does not acquire any form of right or interest in favour of the Defendants outside of the agreement with his parents.   
37.	It was suggested by the Plaintiff’s counsel that the Plaintiff gave the Second Defendant 10 years from Tengange’s death to occupy the Land. The suggestion was not pleaded and not in evidence. It was inappropriate to raise it during cross examination and closing submissions. The Defendants understandably did not engage and I have no intention of dealing with it further.   
38.	It follows, in my view, that the Second Defendant’s occupation of the Land and house after his parents’ death was lawful and subject to the agreed conditions already mentioned until such time the Plaintiff took steps to remove them.    
39.	The Plaintiff took that step on 31 August, 2023 when he demanded the Defendants move to his own town allotment. From that date onwards the Defendants were occupying the Plaintiff’s Land and house unlawfully. A second letter followed but was ignored.  
Did the Plaintiff promise to the Second Defendant and family to continue living on the Land because he would return it?
40.	The Second Defendant and Tevita spoke about the promise they allege the Plaintiff made to the Second Defendant’s parents. The second allegation of a second promise is made by Sione at a family meeting in New Zealand. Effectively, this promise, if true, amounts to a variation to the conditions of the Plaintiff’s agreement with Tengange and Kesaia.
41.	On the other hand, the Plaintiff was steadfast in his denial of making such promise and unshaken under cross examination. He denied both allegations and was cross examined on the point as below:
Defence Counsel	Do you recall your conversation with Tengange, Kesaia and Tonga about your allotment in Tonga? 

Plaintiff	No, our conversation was for them to live in my house.

Defence Counsel	I put to you that you told Tengange and Tonga to live there because you would return the Land to them?

Plaintiff	No, I only told them to stay there.

Defence Counsel	You told them you would return the Land to them because Kasipa will never return to Tonga? 

Plaintiff	No there was no conversation to confirm any such thing.

Defence Counsel	I put to you that you told them you would return the Land to them? 

Plaintiff	No there was no intention to return it, the intention was for them to live in the house – there is the law and an heir.
…………………………

Defence Counsel	Is it possible that you may have forgotten that you told Tengange and Tonga you would return the Land to them?

Plaintiff	No, I made no such statement because I have no authority to return the Land according to law and the Constitution.” 
42.	In my assessment of the evidence on this point, I found the evidence of the Second Defendant, Tevita and Sione inconsistent and implausible and the evidence of the Plaintiff credible and more probable for the following reasons. 
43.	The first inconsistency is in Tevita denying the Second Defendant was present during the conversation between the Plaintiff and his parents in 2000. 
44.	Secondly, Tevita and Sione waited over 20 years to come forth with this information. They are related to the parties and clearly predisposed to the view that the Second Defendant is the rightful owner of the Land. They themselves admit that they spoke to the Second Defendant after they heard about these proceedings and wanted to give evidence on his behalf.
45.	It is unknown why they did not offer the strong support they now show for the Second Defendant to Tengange and Kesaia when they were alive. They would have been in a better position to pursue the promise if it were true.  
46.	Thirdly, neither the Plaintiff nor Tengange or his wife took any steps to fulfil the promise Tevita and Sione allege the Plaintiff made. 
47.	Fourthly, it does not seem (as there is no evidence) that Tengange or his wife told the Second Defendant (who was to gain the benefit of the Land) about the alleged promise during their lifetime. 
48.	In further considerations of the possibility and implications of this promise, I turn to a number of challenges posed on this claim. 
49.	Firstly, in his written evidence, the Second Defendant acknowledged Vala’s visit on or around 2017 and desire to assess the house for renovations. He said that his mother was not happy but he allowed Vala to carry on. He said that he told Vala that: 
“…. If her brother Kasipa will not return to Tonga, then I need my land to return back to me as her father…had promised.”
50.	That specific statement is inconsistent with the promise Tevita alleges, that is, that the Land will be returned because Kasipa will never return to Tonga. The promise was not conditional on Kasipa’s return. According to Tevita, the Plaintiff confirmed that Kasipa was not returning at all apparently making it possible for the Plaintiff to return the Land. The Second Defendant’s statement also highlight he is well aware that Kasipa can claim his rights to the Land.  
51.	Secondly, to effect the alleged promise a number of steps is required of the Plaintiff to start the process. He is required to surrender the Land under s. 54 of the Land Act and the process mandated by that section will be observed. Such surrender must be approved by Cabinet. Once approved, the approval is published on one issue of the Tongan Gazette and 3 issues of a Tongan weekly newspaper within 2 months of the date of notice. It will then be open for Kasipa as heir and anyone else (including Tengange and/or the Second Defendant) who claim to have an interest on the Land to lodge a claim within the prescribed time. If Kasipa elects to do that, the land will most likely be registered in his name as the Plaintiff’s sole heir. 
52.	If no claims are lodged on time, the land reverts to the estate holder. The estate holder may or may not grant the land. He may elect to retain it as part of his estate or grant it to anyone he may choose. There was no evidence that any of these steps were taken.  
53.	Thirdly, Tengange already held a registered town allotment (which the Second Defendant is presently pursuing registration) and could not for the purposes of s. 48 of the Land Act hold a second town allotment. 
54.	Finally, a combination of Tengange’s existing town allotment and the Plaintiff’s will consist of a total area of 0a 2r 15p well in excess of the prescribed area for a town allotment and would be void pursuant to s.49 of the Land Act. 
55.	It is therefore my conclusion that it is not proven on the facts that the Plaintiff varied the conditions of his agreement with the Second Defendants’ parents by promising that he would return the Land to them as alleged.  And for the reasons discussed, even if the promise was made, it would have been legally impossible to perform and therefore void. 
Has the Defendants suffered as a result of their reliance on the Plaintiff’s promise and representation?
56.	The Second Defendant claims his father renovated the house in 1996 plus his own expenses of $47,800 to be paid back by the Plaintiff to him if he is required to move. Those costs are broken down in the statement of defence as:
Maintenance of house	$14,000
Electricity since 2000		$23,800
Maintenance of Land		$10,000
Total 				$47,800 
57.	The Second Defendant accepted that the maintenance and electricity costs were for his and his family’s benefit. He told the Court he did not want the Plaintiff to repay him these amounts but he is asking for the livelihood of his family. 
58.	The Plaintiff did not accept he was liable for these costs. He said they were necessary for the Defendants’ own benefit. I accede to this view. 
59.	The maintenance of the Land and house was a condition of Tengange and Kesaia’s occupation of the Plaintiff’s Land and house. The Plaintiff’s agreement with them ended when they died. 
60.	Here, the Second Defendant does not rely on a promise or an agreement between him and the Plaintiff. He has simply continued occupation based on the agreement between the Plaintiff and his parents and has no independent right of his own to challenge the Plaintiff’s application for an eviction order.
Is the Plaintiff estopped from evicting the Defendants?  
61.	Lastly, the Defendants rely on the defence of estoppel by acquiescence.  In Maile v Kalasi [2017] TOCA 3, the Court of Appeal addressed the circumstances that must exist for estoppel by acquiescence to be relied on to create property rights. It stated that the Court has a wide discretion to grant relief when an owner of land: 
(a) 	Induces, encourages or allows the claimant to believe that he or she had or will enjoy some right or benefit over the land; 
(b) 	The claimant acts to his or her detriment to the knowledge of the owner; 
( c) 	The owner then seeks to take unconscionable advantage of the situation by denying the claimant the expected right or benefit.

62.	 As I have found against the alleged promise of returning the Land, the existing position in law was always a mere licence to occupy on conditions. Any maintenance Tengange and his wife may have effected on the Land and house was consistent with the conditions of their licence which ended upon their deaths.

63.	The Plaintiff’s silence and inaction since the death of Kesaia in 2021 does not in any sense give rise to any property rights in favour of the Second Defendant. He in fact continued to occupy the Plaintiff’s Land and house at the Plaintiff’s pleasure and permission until such time he required him to leave. 

64.	That permission was terminated by his demand on 31 August, 2023 for vacant possession of his Land and house.   

Plaintiffs reason for action
65.	The Plaintiff’s instigation of this action is consistent with the conditions of the licence granted to Tengange and his family. The Second Defendant has allowed the Land and house to fall into disrepair and invited others to live on the Land contrary to the terms of the agreement with his parents.  

66.	 It is recorded that a site visit was undertaken with all parties and counsel. It was clear that the Plaintiff’s house was in disrepair and the Land unkept. Next door stands Tengange and Kesaia’s house on their land. 

67.	The Second Defendant will eventually (if not already) be registered as the holder of that town allotment which has a house on it he could very well repair to house his family. 
	
68.	This is an unfortunate case where the Second Defendant has simply misunderstood the arrangement between the Plaintiff and his parents or has been misled as to his interests/rights in respect of the subject Land. 

Result
69.	Judgment is granted in favour of the Plaintiff. 

70.	The Defendants are to vacate the Plaintiff’s town allotment immediately or by agreement with the Plaintiff. 

71.	The Defendants are to pay the Plaintiff’s costs of the proceedings, to be taxed if not agreed.

P. Tupou KC
J U D G E

NUKU’ALOFA: 18 June, 2025