By Linny Folau
Tevita Lui’s claim to evict Saralee Soakai from his tax allotment in Toula, Vava’u was dismissed after a Land Court judge ruled that a Tenancy Agreement remains in force until 2055, and there was no breach in the agreement.
Justice Tupou with Land Assessor, Fuiva Kavaliku, delivered the ruling on 16 July at the Land Court in Nuku’alofa
The plaintiff, Tevita Lui, is the registered holder of the tax allotment, which was registered in his name on 14 September, 1993. On 18 January, 2005 the plaintiff entered into the Tenancy Agreement with Mr. Frank Cawkwell of Zambia to develop and occupy Lot 2 of the allotment for 50 years.
The plaintiff migrated to the United States of America shortly after the agreement was executed, while the tenant built two dwelling houses and occupied the land. In 2023, the plaintiff discovered a person by the name of Robert, living on the premises together with the defendant. Robert died shortly after, and the defendant continued to occupy the premises despite being served a notice to vacate on 30 January, 2024.
A complaint was then lodged with the police. The defendant gave the agreements to the police purported to be a Sub-let agreement to Michele Roberts Lopez, Richard Hill and the defendant.
The plaintiff then filed these proceedings seeking orders to:
- terminate the Tenancy Agreement with Mr. Cawkwell;
- terminate the sub-let agreement between Michele Roberts Lopez and Robert Hill and the defendant, and
- evict the defendant.
In response, the defendant claimed she has an equitable licence to be on the premises through what she said was a "sub-let” agreement and the plaintiff was therefore estopped from evicting her from the premises. The defendant sought orders to:
- declare the agreement between the plaintiff and Mr. Cawkwell is valid;
- declare that she has a right of occupation; and
- declare the plaintiff is estopped from evicting the defendant plus costs.
Alternatively, if the plaintiff’s claim were to succeed, she sought orders for: the plaintiff to re-imburse to the defendant TOP$255,783.83 the equivalent of the money paid to acquire the land; the plaintiff to re-imburse to the defendant TOP$500,000 spent in maintenance, upkeep and renovations; the plaintiff to pay the defendant $5,000 in aggravated damages for threats, violence and mental abuse and the plaintiff to pay the defendant $5,000 for pain, strain and stress inflicted by the plaintiffs relatives and counsel, while she mourned Mr Hill.
The judge stated that the plaintiff gave evidence via AVL from Seattle, USA and told the court that after his grandfather died, the allotment was registered in his name on 14 September, 1993. The allotment is known as “Matahau” consisting of 7a 2r 02p.
“On 18 January, 2005, the plaintiff entered into the Tenancy Agreement with Mr. Cawkwell from Zambia to develop and occupy a part of his allotment identified as the premises. The Tenancy Agreement was produced which relevantly, provided that the premises consist of the buildings, fences and structures, to be built under the agreement and the land upon which the same shall be situated on the property legally described as the land, part of the plaintiff’s allotment.
“The landlord lets and the tenant takes the tenancy of the premises for the term at the rent and terms and conditions contained in the agreement, the term of the tenancy was 50 years, rent payable was $23,750 for the duration of the tenancy.
“It added that the tenant was at liberty to develop the land subject to minimum standards for safety, sound proof, health and any other requirement under any building code and regulations of the Kingdom. Moreover, all building(s), fences, structures and fixtures on the land shall become the property of the plaintiff upon completion, the tenant was responsible for maintenance and upkeep of the premises and the tenant may sub-let the premises provided he remained personally liable for the terms of the agreement,
Also included is the tenant may assign the tenancy subject to such assignee(s) signing the plaintiff’s copy of the agreement with Mr. Cawkwell, otherwise such assignment did not bind the plaintiff.
“The agreement provided for termination under clause 14 was: ‘This Agreement shall not be terminated by the Landlord except if the Tenant has defaulted in any of his obligations contained herein and he has been notified in writing and has continued to default for 30 days. On the other hand, the Tenant may terminate the Agreement at any time by giving written notice thereof to the Landlord, provided that he shall not be entitled to any refund of any payment of rent made under clause 4 of this Agreement. In either case, the Tenant shall leave the premises in good tenantable and clean condition.’ ”
Eviction fails
Meanwhile, the judge stated that the plaintiff left Tonga for the United States shortly after the Tenancy Agreement was signed in 2005 and had lived there since. In 2020, the plaintiff was told by family in Vava’u that they noticed new people on the premises. The plaintiff engaged legal representation (Samiu Vaipulu) who had drawn up the Tenancy Agreement with Mr. Cawkwell to assist. A letter was sent to the occupants of the premises to stop any work therein.
Around the same time, in January, 2020, the plaintiff received a call from a person named Robert with a request to sub-lease the premises from him. The plaintiff refused and due to the global covid-19 lockdown, the plaintiff could not visit Vava’u until 2023. Once in Vava’u, the plaintiff visited the premises and was met by the defendant there. She told the plaintiff that Robert was ill and incognizant but he could talk to her. Robert died the following week.
The plaintiff agreed for the defendant to hold Robert’s funeral on the premises because she agreed she would vacate the premises afterwards. However, after the funeral, the defendant continued to occupy the premises and refused to move. The plaintiff lodged a complaint with the police and the defendant apparently gave the police documents to show she was a tenant on the premises. The plaintiff then filed this action against her.
The court was told that the defendant had subsequently vacated the premises and like Mr. Cawkwell, her whereabouts is unknown.
After hearing from the plaintiff, the judge was satisfied on the evidence that the plaintiff is the registered holder of the tax allotment on which the premises and pursuant to clause 6 of the Agreement, the owner of all buildings and structures there.
The judge also accepted that under the tenancy the plaintiff lets the premises to the tenant for 50 years and that the rent for the term of the tenancy has been paid in full. She turned to the orders sought as relief by the plaintiff. In the Cancellation of the Tenancy Agreement with Mr. Cawkwell. Under clause 3 of the Tenancy Agreement, the term of the tenancy is 50 years and therefore runs until 2055.
Clause 14 of the Tenancy Agreement provides for the termination of the agreement by either party. It states that the plaintiff may not determine the agreement unless: the tenant defaulted in his obligations under the agreement; the tenant is notified in writing of such default; and such default has continued for 30 days. Here, the plaintiff alleged that the tenant was in breach of the agreement, stated the judge.
“I found nothing in the plaintiff’s evidence that substantiated the alleged breaches. The offending agreement was not produced, the plaintiff could not explain the basis of his allegation that there was no insurance and provided nothing to substantiate the run down state of the building(s). To that end, by his own evidence, the plaintiff in 2020 stopped Robert via Mr. Samiu Vaipulu from carrying on any work on the premises,” she stated.
"The pivotal issue in this case is whether the tenant was notified by the plaintiff of the alleged breaches? There was no evidence to this point. The plaintiff told the court that he has no information on the tenant’s current address or whereabouts and he had heard he passed away, although there was nothing to prove that the tenant had died.
“That does not absolve the plaintiff from the requirement to give the tenant notice. Service of such notice would have been deemed sufficient had it been served on the defendant as the tenant’s agents or the premises or the tenant’s last known address. If after 30 days the breach is not remedied, the way would then be clear for the plaintiff to bring these proceedings.
“In the absence of any proof that notice of the alleged breaches was served on the tenant, I draw the inevitable conclusion that this proceeding is pre-mature and the application to cancel the Tenancy Agreement is refused."
The judge then ruled that the plaintiff’s claim is dismissed and the Tenancy Agreement of 18 January, 2018 between the plaintiff and the tenant subsists and the consequences thereof are between the parties. There was no orders as to cost.
