IN THE LAND COURT OF TONGA

Taumoepeau

v

Taumoepeau

Land Court, Nuku'alofa 
Finnigan J 
L 320/99 

14, 15, 16, 17 March 2000; 24 May 2000 

Land law — equitable licence — no evidence of representation or acquiescence by defendant 

A registered landholder, the first defendant, leased part of his land to the second defendant for a 60-year term. The land leased was prime land, suitable for commercial use, near the centre of Nuku'alofa. The plaintiffs claimed that they had a prior right to occupy the land. They claimed that their families were granted their respective pieces of the land by their grandfather and they held the land in the customary way. The plaintiffs applied for leases or deeds of grant. 

Held: 

1. In order to succeed the plaintiffs had to make out a case in equity. The claim was not equitable so it could not succeed. 

2. The necessary precondition for the equity of possession is a legal relationship between any/each of the plaintiffs and the first defendant as landholder - and the second defendant as lessor if he had knowledge of that relationship. This relationship could have been held to exist in respect of any/each of the plaintiffs if the evidence had shown that any/each of the plaintiffs had occupied or used the land in reliance on the representation or the acquiescence of the first defendant as landholder. The evidence did not show this so there was no evidence of an equitable licence. 

3. Judgment accordingly was entered for the defendants, with costs either agreed or taxed. 

Cases considered: 
Fie'eiki v Ilavalu (No 2) [1995] Tonga LR 192 
Motuliki v Pohahau (Land Court, L 670/97, 12 May 1999, Finnigan J) 
OG Sanft & Sons v Tonga Tourist and Development Co Ltd, Hamilton and the Minister of Lands [1981-88] Tonga LR 26 
Tafolo v Vete [1998] Tonga LR 164 (CA) 
Taufa v Veamatahau [1999] Tonga LR 200 
Vai v 'Uliafu & Anor [1989] Tonga LR 56 10 20 30 

Statutes considered: 
Constitution of Tonga (Cap 2) 
Land Act (Cap 132) 
Nationality Act (Cap 59) 

Counsel for plaintiffs: Mr Fakahua 
Counsel for first defendant: Mr Etika 
Counsel for second defendant: Mr Tu'utafaiva 
Counsel for third defendant: Mr Tapueluelu 

Judgment 

A registered landholder, the first defendant, has recently leased part of his land to the second defendant for a 60-year term. The land leased is prime land, suitable for commercial use, near the centre of Nuku'alofa. The plaintiffs claim that they have a prior right to occupy the land. The plaintiffs have houses and trees on the land, and want to continue calling it their home.

The Facts

The relevant facts may be stated briefly. The leased land is 1 acre and 2 roods, part of an allotment of 3 acres 2 roods and 8.4 perches. The allotment is known by its name, "Palataisi". It was granted in November 1926 to Vainikolo Taumoepeau. Upon his death in 1961 it was inherited by his son Pauliasi, and upon his death in 1986 it was inherited by the first defendant.

It is clear that the name Palataisi has some significance. Vainikolo Taumoepeau intended the allotment to remain intact for his family and he allocated parts of it to members of his family. He surrendered no part of the land, and no leases were registered. His allocations were patriarchal, unchallenged during his lifetime and during the lifetime of his son and heir, Pauliasi. They have now been over-ridden by the first defendant. The plaintiffs challenge his action. The first defendant and the plaintiffs are all grandchildren of Vainikolo. 

The first plaintiff came onto the land by way of a customary adoption. Pauliasi who was his uncle raised him there, on a part of the allotment that Vainikolo had allocated to Pauliasi. His house was built about 1964 after Pauliasi inherited the allotment, he was shown a part of the allotment where he was to build his house and live with his family. Trees were planted around the house and it was subsequently extended more than once at considerable expense. The house is presently security for a bank loan. One of his sons occupies this house. The first plaintiff says it is in reasonable condition. He has been living and working in Vava'u on government appointment for the last 7 years. The first plaintiff is the registered holder of a town allotment in Ha'apai which he inherited from his father Pauliasi's brother, and claims an interest in Palataisi for his son. 

The second and third plaintiffs were born on the land and grew up there. Their mothers were daughters of Vainikolo, who were allocated parts of the allotment on which to build houses. The family home of each remains on the allocated part of the land, with trees. These plaintiffs grew up in those houses. The second plaintiff went to live in America in 1973 and left the one in which he had lived in Pauliasi's hands, for Pauliasi to rent out. Pauliasi did rent it out and kept the rent. Part of it stands on the land that has been leased. The house has been used since 1989 as security for a bank loan. The first defendant by this time had inherited the allotment, but he was not aware of the mortgage. The second plaintiff, with his family, has continued living and working for the last 27 years in the United States. He says he is a naturalised American citizen. He does not appear to have taken much interest in the house or the land in the time he has been away. His attachment to it is as family land. 

The third plaintiff remains a Tongan citizen, but has lived in America for over 30 years. He, like the second plaintiff, does not appear to have been much concerned about the use of the house or the land in that time. At one time this house was extended. His mother told him they were asked to remove it. It has now been removed and/or demolished. Like the second plaintiff, he claims an interest in part of the land because that part was given to his mother. It seems that the mother of the third plaintiff is still alive and residing in the United States, but she makes no claim in these proceedings. 

The first defendant is the heir and registered holder of the whole allotment. He was approached by the second defendant with a proposition, and reached an agreement. It seems the second defendant paid him $700,000 and the part of the land which the plaintiffs say is theirs has been leased to the second defendant for 60 years at $5,000 per year. The Cabinet in accordance with the Land Act (Cap 132) has approved this lease as a commercial use. 

The way the plaintiffs see it, their families were granted their respective pieces of the land by their grandfather. They say this is land that they hold in a customary way. Had they been given the opportunity, they say, they would have applied for leases or deeds of grant, and they seek to do so now. The key to their case is the principle that allows equity in the land law. In particular, counsel submits on their behalf that the lease to the second defendant should be set aside, because its registration was obtained by fraud and/or misrepresentation which caused mistake or misunderstanding by the Minister of Land, the third defendant. The particular fraud or misrepresentation that they allege in their claim and in their evidence is as follows. They say that the first defendant, and some officials in the Ministry of Land, failed to tell the Minister what each knew about the land, i.e. that it was not available for lease because it was already permanently occupied by them. Their permanent occupation they say arises from their grandfather's surrender of the respective parts to their parents, their long-term occupancy and use and their family ties with the land. 

The Submissions 

Each of the written submissions filed by counsel is of very high order. They have been central to my decision and very helpful. It is not necessary to refer to every point made, but I have considered them all. Mr Tu'utafaiva counsel for the second defendant supplied copies of authorities relied on, and that is appreciated.

For the plaintiffs, Mr Fakahua relied on the principle of estoppel, but as counsel for the other parties have pointed out, this principle is not available to the plaintiffs. Estoppel as a principle is provided in s 103 of the Evidence Act, which governs the principle. As Mr Etika noted in his response, the use of the principle was commented on in similar circumstances in Fie'eiki v Ilavalu (No 2) [1995] Tonga LR 192. 

Mr Fakahua next relied upon a judgment of the Privy Council, counsel may care to note the citation, OG Sanft & Sons v Tonga Tourist and Development Co Ltd, Hamilton and the Minister of Lands [1981-88] Tonga LR 26. The case was cited as authority for the proposition that this Court has jurisdiction to apply principles of equity where they do not conflict with the Constitution of Tonga (Cap 2) or the Land Act (Cap 132). 

Counsel then cited s 92 of the Land Act, and submitted that the lease in the present case exceeds the allowable 50-year term. However s 92 is restricted to leases of tax allotments. He cited then s 130 and submitted that the actions of the first defendant had not complied with the provisions for surrender of leases. However, what happened in the present case was registration, not surrender. 

He then submitted that "there was a fraud and the first defendant breached the promise and the grant of the former landholders Vainikolo and Pauliasi and the first defendant misled the third defendant and also the Ministry of Lands failed to give the proper details of the land in dispute, as the land is not available for lease [because the plaintiffs] were presently occupying the same". That is the crux and conclusion of the plaintiffs' case. 

These claims were thoroughly explored by counsel for the first and second defendants. Mr Etika in particular relied on the principles and the authorities that are set out in Motuliki v Pohahau (Land Court, L 670/97, 12 May 1999, Finnigan J), and in Taufa v Veamatahau [1999] Tonga LR 200. He submitted that the Land Act is a complete code which rigidly controls all claims including claims to leasehold interests, with room for equity only where there has been a breach of the Land Act, or a breach of a promise, or a breach of natural justice. He pointed out that the plaintiffs had not applied for any grant or lease under the Act, nor paid any prescribed fees. He pointed out too that s 48 of the Act prevents the holding of a town allotment by any of the plaintiffs who already hold town allotments. He pointed out also that s 54 of the Act laid down the requirements which Vainikolo and/or Pauliasi were to follow had either of them desired to transfer any part of the allotment permanently to one or more of the plaintiffs or their forebears. He submitted, as did Mr Tu'utafaiva for the second defendant, that from the facts it could be held that permanent transfer was not intended by Vainikolo, who asked that his family live together on the allotment in peace and harmony.

Both also made the point that transfer by Vainikolo to any person, had he intended that, was not a matter for him alone. It was subject to the Act, and in particular subject to the approval of the Minister and Cabinet. Both counsel as well made many other valid points, but it is necessary only to acknowledge them, not to refer to them in detail.

Decision

The plaintiffs acknowledge that, in order to succeed, they have to make out a case in equity. Equitable principles may be applied if not excluded by the Constitution or the Land Act. They claim equity on the footing that they have long association with the land, and that the parts of the land where their houses are were allocated to their parents by their grandfather. They claim it was their grandfather's wish that their parents, and thus they themselves, and their children, should remain in peace and harmony as a family on the allotment.

It would be a strong claim indeed for equity to make, if it were to try to reach out from Vainikolo's grave to enforce his wishes on future generations, and on future Ministers of Land and future Cabinets, and on other persons who claim title to all or some of this land according to the law. I do not think the claim is equitable, and it cannot succeed.

I doubt that Vainikolo made a verbal promise to future generations, rather he made of them a request that they live together on the whole allotment, in harmony and peace. One of his daughters to whom he allocated a part, and her son the third plaintiff, with his family, left the land to live in America. So did the second plaintiff with his family. Had Vainikolo made a promise, it was not a promise that bound his grandson the first defendant. What was binding was Division VII of Part IV of the Act, which, together with natural events, prescribed the legal consequences to the actions of Vainikolo and Pauliasi. One of the consequences was that the whole allotment passed in 1986 to the first defendant, for him to hold and to dispose of under the strict terms of the Land Act. During that time, any of the plaintiffs was free to urge upon him the claim that they now make, with the hope that a surrender of part of the allotment, or a lease, might have gained the approval of the Minister and Cabinet.

I can find in the evidence no breach of promise by the first defendant, and the evidence makes it plain that the officials of the Ministry of Land and the Minister complied with the Act. I hold that the claims of the plaintiffs and the existence of their houses and trees on the land without any registered title raised no impediments to the work that the officials and the Minister did. I see no breach of natural justice. There may not be even a breach of the wishes of Vainikolo, were those wishes in the present circumstances to be known. The departure of one of his daughters to America may not have seemed to her to be a breach of her father's wishes for she has made no claims.

On that topic, the Nationality Act (Cap 59) provides at s 4 that a Tongan subject who becomes naturalised in any foreign state ceases to be a Tongan subject. The Land Act (Cap 132) at Part IV Division I provides the terms on which Tongan subjects by birth are entitled to land. Beyond that I make no findings for the purposes of the present case. The Land Act at s 48 prohibits two holdings of the same kind, but does not prevent landholders from leasing further land. No further comment on that topic is necessary for present purposes.

As to the claim that the land was not available for lease, I note and adopt the submissions of Mr Tu'utafaiva. The term "available" as used in the plaintiffs' claim and submissions cannot have in the present case the meaning given it in the Act, as e.g. in the term "available for allotment". The term was discussed by the Court in Vai v 'Uliafu & Anor [1989] Tonga LR 56, at 64. The factor relied on by the plaintiffs as making the leased portion not available for lease is their occupancy. But they have not relied on any legal occupancy under the Act, and they cannot. They have relied on the allocation of parts of the land to their parents by Vainikolo, and their understanding that he intended those allocated parts to remain always available to the descendants of those to whom he allocated those parts. Even if that was his intention, the law limits its effect. The plaintiffs cannot rely on it as excluding bona fide lessors under the Act. To make a binding and permanent arrangement of the parts of the land concerned, he had to part with control over it by taking steps under the Land Act.

It may be, as Mr Tu'utafaiva suggests, that the plaintiffs are raising an "equity of possession" or "equitable licence", as mentioned by the Court of Appeal in Tafolo v Vete [1998] Tonga LR 164 (CA) at 171 of the judgment. He points out that in their prayer for relief they seek only cancellation of the second defendant's lease and time "until formal application for a deed of grant alternatively a deed of lease and to register the same". He submits that if that is granted the plaintiffs will be still subject to the provisions of the Act that govern such applications, unless the Court overrides the requirements of the Act in Part IV Division VII of the Act. These include a prohibition on holding two town allotments. There are matters provided for there which are outside the jurisdiction of the Court, such as minimum size and the choice that may be made by a plaintiff who has another town allotment to elect not to accept any town allotment that might result from the judgment.

This point is well taken against the plaintiffs, and for another reason. The necessary precondition for the equity of possession is a legal relationship between any/each of the plaintiffs and the first defendant as landholder - and the second defendant as lessor if he had knowledge of that relationship. This relationship could have been held to exist in respect of any/each of the plaintiffs if the evidence had shown that any/each of the plaintiffs had occupied or used the land in reliance on the representation or the acquiescence of the first defendant as landholder. It is a fact that the first defendant has been the landholder since 1986, and that the houses of the plaintiffs, though not the plaintiffs themselves, have been on the land all that time. However, two of the plaintiffs, and the mother of one who is the primary occupier in respect of one part, have been away from the land for all of that period and have taken little interest in it. The other plaintiff has been away for some years, and has his own town allotment in Ha'apai. The pledging of houses as security for bank loans was not explained, nor was there evidence that the first defendant knew that this had occurred. I have found nothing in the evidence that would establish the facts of an equitable licence.

In conclusion, I uphold most of the submissions of counsel for the first and second defendants, and am bound to find that the claim of the plaintiffs cannot succeed. Judgment accordingly is entered for the defendants, with costs to be agreed or taxed.