The Appeal Court dismissed an appeal by Lord Fohe who was trying to evict Ve'etutu Mahe from a piece of land on his estate at Puke, Tongatapu.

Lord Fohe, who is the nephew of the late Fohe who passed away in 2009, had appealed against the Land Court's ruling, which uheld Mr Mahe's claim of estoppel, while dismissing his eviction application.

The Appeal Court's judgment on 10 October stated that until his death in 2009, Samiu Fohe (the late Fohe) held the hereditary title of Fohe and the hereditary estate of Puke.

After the late Fohe's death, the present appellant, Lord Fohe was appointed as successor to that title, by letters of appointment signed by His Majesty, King Tupou VI, with effect from 17 November 2016.

In the latter stages of the late Fohe's life, his daughter, Lupe acted as his representative. That role afforded her the status of a landholder or holder of the estate, and she continued in that role in the period between the late Fohe's death and the installation of Lord Fohe in 2016.

Before the late Fohe's death, the respondent, Mahe, asked him for an allotment on the hereditary estate. Mr Mahe claimed that he had subsequently taken possession of part of the estate land and had made customary gifts to the late Fohe, as well as carrying out some repairs and maintenance to the late Fohe's house without charge.

The court heard that in the period between the late Fohe's death and the appointment of Lord Fohe in 2016, Mr Mahe built a house with a concrete foundation on the land, in which he and his family now reside.

Mr Mahe also alleged that the late Fohe had promised to arrange a grant of the allotment and registration in his name, but that was not completed before his death.

Land Court proceeding

The Appeal Court stated that fllowing his installation, Lord Fohe indicated he was not prepared to honour any promise of the type that Mr Mahe alleged had been made.

He then issued a claim in the Land Court to evict Mr Mahe from the area that he occupied.

Lord Fohe denied that anything that might have been said by the late Fohe gave Mr Mahe an enforceable right of occupation. At the time the proceeding was issued, there were four defendants, but for reasons given later, Mr Mahe was the only one who actively defended the Land Court claim.

He sought eviction orders against all persons residing on this estate. The defendants did not file defences. In the result of a hearing, the learned judge ordered all defendants to vacate the land within three-months and to pay damages and costs.

Subsequently, only Mr Mahe filed an application to set aside the default judgment against him. After a contested hearing, the judge set aside that judgment, with costs.

Lord Fohe's position before the Land Court was that he was appointed to the hereditary title from 18 November 2016, that Mr Mahe had built on his land without authority, and had failed to vacate, after service of a notice calling on him to do so.

On the other hand, Mr Mahe defended the claim on the basis of an asserted equitable and right to possession and counterclaimed for an order to be registered as lawful holder of the allotment.

The judge upheld Mr Mahe's claim of estoppel and dismissed Lord Fohe's eviction application.

However, he rejected Mr Mahe' s counterclaim for a grant of the allotment.

Decision

Lord Fohe's first submission was that because the alleged grant by the late Fohe was verbal, it was not binding. He contended that Mr Mahe's entry onto his land to build between 2012 and 2014, several years after the late Fohe's death, meant he was a trespasser .

It was also submitted that because there was no 'estate  holder' when Mr Mahe was "coming to reside" between 2012 and 2014, he could not be said to be "coming to reside" in the property, for the  purposes of s.35 of the Land Act.

There was also an issue whether Lord Fohe could have acted to evict Mr Mahe immediately on the death of the late Fohe in 2012, albeit his appointment did not occur until 2016.

The Appeal Court stated in their view, the learned judge was entitled to hold that Lord Fohe was estopped from evicting Mr Mahe, essentially for the reasons he gave.

He reasoned that Lord Fohe had acquiesced in Mr Mahe's occupation of the propetry on which he had built over some years, with knowledge on his part, at least for a time.

Section 38( l) of the Land Act provides that, with an hereditary estate, His Majesty "shall cause the name of the lawful successor (of the holder who has died) to be published in the Gazette together with the date of his succession the... which shall be the day following that on which the death of the holder took place....".

However section 39 of the Act provides for an unbroken chain of ownership, giving rise to constructive knowledge, on the part of Lord Fohe, of the situation in which Mr Mahe finds himsellf though the relevant period of that unbroken chain.

On the judge's findings of fact, the late Fohe indicated to Mr Mahe the allotment on which he subsequently built, and his daughter Lupe, while the late Fohe's representative, set in train the process for subdivision and registration, although that was not accomplished prior to the late Fohe's death. Lupe also encouraged Mr Mahe to build on the land after the death of late Fohe.

She acted as the de facto representative of the eventual successor during the interregnum. Lord Fohe is fixed with the knowledge of both the late Fohe and Lupe, stated the Appeal Court.

“That analysis, and the result are well illustrated by the following passage from Lupe's evidence at trial:

Q: ls it true that Samiu Fohe has passed away?
A: Yes but everything was left with me. Everything regarding the estate holder on land , I was the one to contact because I have dealt with it for 7-years in representing my father.
Q: Just to clarify, so you are say ing that even if your father has passed away you will still be the estate representative ?
A: Yes.
Q: In paragraph 15 of your evidence  it states (read the document) why were you shocked?
A: I didn't anticipate that he would treat the people this way, I thought that he would continue with good grace the work my father did and that is why I was shocked.

"Accordingly, the appeal is dismissed with costs to the respondent to be taxed if not agreed."

Meanwhile, Lord Fohe was this year appointed Minister of Agriculture. He entered Parliament as Tongatapu 3 Noble's Representative, after being elected for the first time in the 2021 Election.