By Linny Folau
‘Asaeli Niu’ila (96) who resides in Wellington was successful in his action to evict occupants from his town allotment in Niutoua, after being granted judgmentin the Nuku'alofa Land Court on 18 June.
The judge said that this was an unfortunate case, where one of the defendants had simply misunderstood the arrangement between the plaintiff and his late parents or was misled as to his interests or rights over this land.
Justice Tupou in a 12 page judgement ruled in favour of the plaintiff who is also known as Tevita Kaulamatoa, who sought to evict the defendants, a couple Telesia and Sione Filimoemaka.
Sione Filimoemaka‘s late father was related to the plaintiff, who lived next door. After the Plaintiff emigrated to New Zealand in 1987, the defendants were allowed to move and live on the land and the house the plaintiff built, because it had better facilities.
The judge stated that it was clear that the second defendant’s late parents did not move 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.”
The court heard that the proceedings were 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 the Plaintiff’s knowledge.
Neighbours
The town allotment, under Deed of Grant registered on Book 76 Folio 86 consisting of 1r 07.5p was registered on 29 November, 1966. The plaintiff built a house on the land and lived there with his wife and children. His neighbour was his close relative, Tengange Filimoeaka, who was married to Kesaia, and their son is Sione, the second defendant.
Tengange and Kesaia are now deceased. The second defendant married Sia, the first defendant and they currently occupy the house and the land of the Plaintiff.
The Plaintiff had requested the defendants to vacate his land and house but they ignored his request resulting in these proceedings.
Evidence
The judge stated that it was common ground that the plaintiff is the registered holder of the subject town allotment and the owner of the house erected on it. He is 96 and resides in Wellington.
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.
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. By 1987 the plaintiff’s children had migrated overseas and after he retired, he and his wife followed them abroad. 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 two years old at the time.
The judge stated that from the evidence the conditions of the agreement was that Tengange and his family will stay free of rent but were expected to maintain the land and the house.
The plaintiff visited several times between 1992 to 1995 and he observed that 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.
On the other hand, the second defendant claimed that Tengange renovated the house in 1996. Tengange passed away in 2006 or 2007. The second defendant and his mother remained on the land and house before his mother died in 2021. The second defendant continued to live on the land with his family.
Then around 2017-2018, the plaintiff’s daughter engaged a builder to assess costs for renovating the house. The builder recommended the house be demolished due to its condition at the time.
The state of the land was raised to the plaintiff’s attention by the town officer of Niutoua, the court heard.
Furthermore, the defendants accepted 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. He then got legal representation and sent the defendants a demand on 8 September, 2023 giving them seven days to vacate the property or face legal action for trespass. The defendants remained on the land and house refusing to move.
Disputed facts
The judge stated in the disputed facts, that the second defendant claimed that in about the year 2000 the plaintiff had promised Tengange that he would return the land to him and Kasipa, and that the plaintiff’s heir would return to Tonga to complete the transfer. The second defendant claimed he was present and heard this conversation.
Meanwhile, the Plaintiff denied he made any promises to return the Land directly to Tengange and Kesaia or at a family gathering in New Zealand.
Mr Fili Counsel 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.
The judge found in favour of the Plaintiff.
“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."
“For the defendants, their counsel 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 but 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,” stated the judge.
“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.”
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, she added.
In her assessment she found the evidence of the second defendant inconsistent and implausible and the evidence of the plaintiff credible and more probable and gave reasons.
“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.”
In addition, the second defendant claimed 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 was required to move.
The judge found against this alleged promise of returning the land as 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. 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.
“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 house to fall into disrepair and invited others to live on the land contrary to the terms of the agreement with his parents,” she stated.
Moreover, the judge stated that next door stands Tengange and Kesaia’s house on their land and 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.
The judgment was then granted in favour of the plaintiff and the defendants were ordered to vacate the plaintiff’s town allotment immediately or by agreement with the plaintiff. The defendants were also ordered to pay the plaintiff’s costs of the proceedings to be taxed if not agreed.
