IN THE LAND COURT OF TONGA
Land Court, Nuku’alofa

L 856/96

Koloamatangi

v

Mangisi

Lewis CJ
11 July 1997; 20 May 1998

Land ⎯ lease agreement ⎯ no consent of Cabinet ⎯not binding 
Land ⎯ widow of title holder ⎯ registered title holder 

The plaintiff was a widow. Her husband, Semisi, was registered as the holder of an allotment and had entered into an agreement in 1986 relating to that allotment. The agreement provided for the defendant to construct a building on the allotment at her expense which would become the property of Semisi and which she would rent for a set amount and for a set period. In 1994 Semisi died and the estate passed to the plaintiff. After a lengthy dispute the plaintiff brought procedings to remove the defendant from the land. The plaintiff claimed that the agreement did not bind her. The defendant claimed that the agreement did bind the plaintiff in law or alternatively in equity. 

Held: 

1. The agreement could not be regarded as conferring a legal lease upon the defendant as the formality requirements of section 56 of the Land Act 20 (Cap 32) had not been complied with. 

2. The plaintiff was and, at all material times, had been the registered holder of the allotment. 

3. The defendant had no equitable right to the allotment. Even had an equitable right existed, there were grave doubts that such a right could ever pass with the transfer of title as provided for by ss 58 and 80 of the Land Act. 

4. The defendant was ordered to vacate the land and buildings. 

5. The costs of proceedings are to be those of the plaintiff to be taxed or agreed. 

Cases considered:
Makoni v Koloamatangi [1990] Tonga LR 50 (PC) 

Statutes considered:
Evidence Act Cap 15
Land Act Cap 132

Counsel for plaintiff: Mr Tu’utafaiva
Counsel for defendant: Mr Niu

Judgment

This case arises out of an unfortunate series of dealings with a piece of land, in which some highly irregular transactions seem to have taken place. The difficulties in 40 which the parties find themselves today can be traced back to these ill-advised dealings. 

As a preliminary matter, it was raised in submissions and at trial that the second and third defendants to this action have vacated the land in question. As a result, the plaintiff elected not to pursue her claim against them, and the trial consequently proceeded on this basis. 

Counsel for both the plaintiff and the defendant helpfully assembled a list of agreed facts; Accordingly, I find: 

• The plaintiff is the widow of Semisi Koloamatangi (hereafter known as “Semisi”), whom she married on July 50 18th, 1964. 

• On January 3rd, 1956, Semisi was registered as the holder of allotment “‘Ulupoko”, situated on Taufa’ahau Road, Nuku’alofa. 

• The first (and now only) defendant, ‘Olive Mangisi, also known as ‘Olive Filipe, is a business woman trading as “Olive Investments” in Nuku’alofa. 

• On about June 13th, 1986, Semisi and the first defendant entered into an agreement relating to ‘Ulupoko. In essence, the agreement was that: 

— Semisi would permit the defendant to construct a building on ‘Ulupoko. 

— The building was to be constructed at her sole expense. 

— The building would become the property of Semisi. 

— The defendant would rent the building from Semisi at the rate of T$200 per month. 

— The defendant would rent the building for a period of 20 years beginning June 13th, 1986. 

On January 8th, 1994, Semisi Koloamatangi died. The estate passed to ‘Ungatea as his widow. Difficulties began between the plaintiff and first defendant. After a lengthy dispute, Mrs Koloamatangi has brought this action, seeking to remove the first defendant from the land. She claims, inter alia, that the agreement between her husband and the defendant is not binding upon her, since the agreement was illegal and was also one to which she was not party. This is contested by the defendant, who claims that the agreement does bind the plaintiff, in law or alternatively in equity. 

To begin with, counsel for the defendant makes reference to the case of Makoni v Koloamatangi [1990] Tonga LR 50, a decision of the Privy Council. This case concerned the same allotment, indeed the same agreement which is in dispute in this to rely on that part of the judgment which reads: 

“… if estoppel was available to anyone it was Linda Makoni as against Koloamatangi, but in our opinion she cannot call it in aid for as the trial judge found she was aware of ‘Olive Filipe’s prior agreement but pressed on regardless. It comes down to a matter of priorities and on that basis ‘Olive Filipe’s prior agreement must prevail.” 

“Prevail over what?” is the question that is raised by this passage. This case concerned an agreement entered into by the late Semisi Koloamatangi after that entered into with the first defendant in the present case — the Privy Council decided that the earlier decision in time must prevail. This has no bearing on the case to be decided in this Court — this cannot be taken as authority for the proposition that Mrs Mangisi/Filipe’s agreement with the late Semisi can “prevail” over anything else.

Turning now to the issue of the alleged illegality of the agreement; the law governing the present matter is from s56 of the Land Act (Cap 132) which provides: 

“56 The Registered holder of a town or tax allotment may grant a lease over the whole or part of his town or tax allotment, provided that-

i) the consent of Cabinet has been obtained in the manner provided by this Act 

ii) the holder is not a widow holding the town or tax allotment of her deceased husband …” 

It was clear from the evidence given before the Court that this formality requirement was not complied with by the parties to this agreement — the Cabinet never knew of the arrangements made in respect of ‘Ulupoko. This was not contested by the defendant in giving evidence. The agreement of June 13th, 1986 cannot therefore be regarded as conferring a legal lease upon the defendant. 

As to the plaintiff’s entitlement to the allotment in question — the parties are agreed that Mrs Koloamatangi became entitled to a life interest in the land held by her late husband through the mechanism of s 80 of the Land Act. Her title was duly registered. I find, as a result, that Mrs Koloamatangi is and has been at all material time the registered Holder of the allotment ‘Ulupoko. 

I now turn to the defence of estoppel raised by the defendant in her submissions. The defence is to be found in s 103 of the Evidence Act, but which-ever formulation is used, the essence of the defence is the same. Estoppel requires a representation to be made to the person seeking to raise the defence, which was relied upon by that person, who then acted on this representation to his or her detriment. The defendant claims two bases on which such a defence can be made out. 

Firstly, it is said that the plaintiff was a party to the original negotiations between the defendant and the late Semisi, and therefore is estopped from denying the defendant’s right to the land. The defendant has proved no such assertions, as she must, on the balance of probabilities. The plaintiff’s signature appears on the document, solely as a witness to the agreement between her husband and the defendant, and not in any other capacity. The agreement makes no mention of the plaintiff being a party to it. 

Secondly, the alleged acceptance by the plaintiff of rent money from the defendant is argued to be grounds for the defence. In the abstract, this might well be so, but once again, on the evidence before me, this cannot be sustained. The defendant claims that in 1994, 1995 and 1996, the plaintiff accepted rent money from her. I do not find this to be so. In 1994, the rent was paid while the late Semisi was alive, albeit gravely ill. In 1995, I find that the cheque was returned by the plaintiff’s bank, acting on the plaintiff’s instructions. In 1996, the rent money was accepted by the plaintiff, apparently acting on her lawyer’s advice. Despite this, I do not believe that there could have been any reasonable belief on the defendant’s part that at any time, the plaintiff was representing that she would agree to a continuance of the original agreement — in short, no representation was made. 

A point of general importance is raised in submissions. It concerns the extent to which interests in land are passed when title to that land passes under s80 and s58 of the Land Act. In this case, it is argued by the plaintiff that under these sections, only legal rights subsisting in relation to the land survive the operation of the sections. Therefore, the plaintiff claims, since the agreement does not constitute a legal lease, she cannot be bound by it. On the other hand, the defendant submits that all rights concerned with the land pass with the title, and therefore that the plaintiff must respect her interest in the allotment.

Those sections provide: 

s80: “On the death of the lawful male holder of any tax or town allotment his widow shall be entitled to a life estate in such allotment which shall terminate on her re-marriage or upon proof in legal proceedings (as provided by s81 of her having committed fornication or adultery …” 

s58: “If the registered holder of a town allotment who has granted a lease in terms of this Part of the Act dies before the expiry of the period of the lease, then – 

i) Where there is a widow entitled to a life estate, she shall for such remaining period of the lease as she is entitled to the life estate 

a) be bound by the terms of the lease

b) receive the rental due as provided by this Part of the Act;

c) not material” (my emphasis) 

Taken together, the only reasonable inference open is that these sections demonstrated a much narrower approach taken to the question of the transfer of interests in land than the defendant contends. Both sections are clear and unambiguous, and neither envisages the life estate taken by a widow to include any third party interests other than those of a legal lessee. However, since I have already found that the defendant enjoys neither a legal or equitable interest in the land in question, this last submission has no direct bearing on the outcome of this case. 

I find that the plaintiff succeeds in her action. The first defendant has no legal right to the land in question. The defendant entered into an agreement with the plaintiff’s husband which had no legal effect by reason of their failure to comply with s 56 of the Land Act. It follows that the first defendant has no legal right to the land now that it is held by the plaintiff. It is for the first defendant to show that the defence of estoppel, as provided for by s 103 of the Evidence Act, applies here, and this she has failed to do. Consequently, I find the first defendant is possessed of no equitable right to the allotment. I might add that even were there an equitable right to be found, I have grave doubts that such a right could ever pass with the transfer of title as provided for by s58 and s80 of the Land Act.

IT IS ORDERED THAT: 

There be judgment for the plaintiff as follows: 

1. It is declared the purported agreement between the plaintiff and the defendant is void by reason of illegality. 

2. The purported agreement between the defendant and the plaintiff’s now deceased husband does not bind the plaintiff. 

3. The structure erected on the land in question is the property of the plaintiff. 

4. The 1st defendants yield possession to the plaintiff of the subject land and building. 

5. That the first defendant forthwith vacate the land and buildings the subject of these proceedings. 

6. The costs of these proceedings be those of the plaintiff to be taxed or agreed.