By Linny Folau

A widower, Anthony Wilson, successfully regained possession of his home, in a court action, after he was forcefully locked out of his house on a plot of land in Mataika, he initially leased with his late wife.

This was after the Court ordered that the heir, his brother-in-law, vacate the property, that he had taken over when the plaintiff had left the property for a short trip.

Wilson had lived on and developed the property for 50 years. He was in a land dispute with the heir which arose from agreements between the parties.

Justice Tupou delivered her ruling on the Application for Possession of the Dwelling by the plaintiff Wilson against the defendant, Siueni Peniueti Lutui, the heir, on 27 January in the Land Court, Nuku’alofa.

“The defendant and anyone on his behalf is injuncted from entering or interfering with the plaintiff’s quiet enjoyment of the property from this day until such time this action is determined," the judge ruled.

Locked out

The court heard that in November last year, the plaintiff returned from a trip to New Zealand for medical treatment to find himself locked out of his house. He found his belongings and dog cleared out and put onto the verandah for him to pick up. He had since been living with relatives. 

This dispute arose from agreements between the parties with regards to the occupation of a house and plot of land with an area of 1r 10p situated on the defendant’s tax allotment in Mataika, Kolofo’ou onTongatapu. This tax allotment was previously registered in the name of Siueni Peniueti Lutui Sr (Siueni Sr), who was married to Ema Peniueti. The defendant is their eldest son and heir. While, the plaintiff was married to their late daughter, Eseta Wilson.

After Siueni Sr’s death, Ema inherited her husband’s tax allotment as his widow. In 1973, Ema granted her daughter, Eseta a lease permit for 20 years. In 1993, the permit was renewed up to 2013. During this time, the plaintiff and Eseta built a house on the land and occupied it to date.

The judge stated that after Eseta’s permit expired in 2013, she and her husband continued to occupy the property with Ema’s permission. Ema died in 2017, her daughter and the plaintiff continued to reside on the property.

On 19 September, 2022, the defendant, Eseta and the plaintiff entered into Agreement #1 granting them continued occupation of the property. At the time, Eseta was ill and was diagnosed with cancer. 

The terms of agreement provided that: a) Eseta and the plaintiff will continue to occupy the land for life; b) after their deaths, the land shall revert to the defendant; c) should Eseta pre-decease the plaintiff, he is free to remain on the land for life or until he migrates elsewhere for good; d) if the plaintiff should choose to migrate for good, he was to notify the defendant and must not permit anyone onto the land and house, except for the defendant; e) should the plaintiff predecease Eseta, she may remain on the land for life. Upon her death, the house and fence shall become the defendant’s property, f) time for removal of belongings upon the plaintiff’s migration and/or after Eseta’s death is 30 days; and g) the land and house was to remain the property of Eseta and the plaintiff for as long as they both shall live. 

The judge stated that Eseta died in 2022 and clearly, under Agreement #1, the plaintiff was permitted to remain on the property for life or until he migrated elsewhere for good. 

“However, shortly after Eseta’s death, the defendant caused another agreement to be signed with the plaintiff before the Minister of Lands. That Agreement #2 provided that: the plaintiff may reside on the land until he returned to New Zealand permanently; is deceased, or upon visiting New Zealand or any other country is to notify the defendant, among other requirements.

Sometime in late October or early November, 2024, the plaintiff travelled to New Zealand for medical treatment, and he had his sister-in-law Vasalua Jenner-Helu look after the property. There was no evidence that he notified the defendant of his trip. Then on 21 November, 2024, the defendant discovered that the plaintiff had left Tonga and Vasa was looking after the property. 

An exchange of letters between his lawyer and Vasa began, requesting she vacate the property. Vasa refused to move out. On 25 November, 2024, the defendant’s son, on the defendant’s behalf broke the lock to the property, evicted Vasa and entered into possession with all of the plaintiff’s belongings inside the house and his dog. 

The plaintiff’s belongings and his dog were subsequently cleared out of the house and put onto the verandah/corridor for him to pick up. 

The plaintiff returned on 29 November, 2024 to find himself locked out of the property and separated with all of his belongings and dog. The defendant has since refused to let him return to the property. The plaintiff is currently living with relatives,” the judge stated.

Pre-mature and oppressive actions

Both parties then entered into their legal dispute with the plaintiff alleging that the land in question does not belong to the defendant. Alleging that it had been surrendered back to Government by Ema with the defendant’s consent. As such, it was no longer the defendant’s land. This was denied by the defendant. 

The judge stated that one of the claims made by the plaintiff was that he has a right of possession of the property under both Agreements #1 and #2, and in the absence of any default provisions in the said agreements, the defendant’s forceful repossession of the property was unlawful. 

“The defence on the other hand relied solely on Agreement #2 and suggested that Agreement #1 ceased to operate upon Eseta’s death and/or the execution of Agreement #2. As the plaintiff failed to notify him he was leaving for New Zealand and placed Vasa on the property, he was in breach of the agreement. He was therefore entitled to cancel the agreement and take possession of the property.

"Even, if the accepted position is, that Agreement #2 supersedes Agreement #1 as submitted by the defendant, I am satisfied that Agreement #2 two falls within the purview of the Land Act and creates an interest in the land in favour of the plaintiff in line with the terms of that.

“The relevant terms under Agreement #2 are: a) that the plaintiff will reside on the land until he is deceased or moves back to New Zealand permanently; and b) the event that determines when the plaintiff will have the land and building ‘under his rule’ is the Plaintiff not returning to Tonga. Those events have yet to occur and the interference in the plaintiff’s right of occupation is premature."

Creates a prisoner

Furthermore, the judge stated that the provision relating to notification about short trips provided that the defendant will take control until the plaintiff returned. 

“Well, the plaintiff returned from New Zealand on 29 November, 2024 and the defendant has not surrendered possession back to him. It is accepted that the plaintiff did not notify the defendant of his trip and placed Vasa on the property against the existing terms of the agreement. Mr C. Edwards (counsel for plaintiff) submitted that the clauses requiring notification on short trips and denying the plaintiff the right to put people on the property is repulsive and creates in the plaintiff a prisoner to be monitored by the defendant,” she stated.

“I believe the plaintiff when he says that while his wife was suffering from cancer, the defendant pushed them to sign Agreement #1. As well as, while he was emotionally grieving his wife, he was pressured several days later to sign Agreement #2. He characterized the defendant’s behaviour as dictatorial and those were the circumstances, under which he signed the agreements.

“I have no difficulty in agreeing with Mr. Edwards and concluding on the facts before me that the clause requiring the plaintiff to notify the defendant of his travels and to have him look after his property and not someone of his choosing is unfair and oppressive.”

Meanwhile, the defendant stated that, had Vasa informed him that the plaintiff was abroad for medical treatment, things may have been different.

“I do not believe that. It is almost two months since the plaintiff returned from New Zealand and he has continued to lock him out of the property. I believe he now wants to get out of the agreement with the plaintiff and has found an excuse to do that. There is evidence that the plaintiff has experienced pressure during stressful times and bad behaviour from the defendant and members of his family previously.

“I don’t blame him for not wanting to go to the property, while they are there to pick up his belongings or his dog. I find the defendant and his son’s conduct towards the plaintiff and his property unwarranted, especially when it is to a person who was in need of recent medical treatment, particularly, when there are no express powers of forfeiture under the agreement.”

The judge then concluded that the plaintiff had established a prima facie case under the circumstances. 

“On balance, if I refuse this application, he will lose his only home in Tonga in which he has lived and developed for 50 years. He will continue to be dependent on family and/or incur further costs if he were to rent accommodation for him and his dog. He will lose use of plants and trees he and his wife planted on the property. On the other hand, I am told the defendant has his own place and I am therefore persuaded that he will suffer very little loss, if any, if the application is granted.

“I am satisfied that the balance of convenience and the overall justice of the case favour the granting of the plaintiff’s application."

The judge then ruled the application successful and ordered that the defendant and all persons in occupation of the plaintiff’s subject property at Mataika without his permission are to vacate the property, upon receiving this ruling. 

"Such persons are prohibited from removing any of the plaintiff’s belongings from the property and are to return any that may have been removed prior to this order. The defendant and anyone on his behalf is injuncted from entering or interfering with the plaintiff’s quiet enjoyment of the property from this day until such time this action is determined."

Moreover, the defendant was ordered to pay the plaintiff’s costs to be taxed if not agreed.