Holani v Tava [2003] TOCA 7; CA 02 2003 (25 July 2003)

IN THE COURT OF APPEAL OF TONGA
LAND JURISDICTION
NUKU'ALOFA REGISTRY

CA 02/2003

BETWEEN:

TOHI KALUSETI HOLANI
Appellant

AND:

1. 'ALEKISANITA TAVA
2. MINISTER OF LAND
Respondents

Coram: Ward CJ
Burchett J
Tompkins J

Counsel: S Kengike for appellant
F Vaihu for first respondent
'A Kefu for second respondent

Date of hearing: 14 July 2003
Date of judgment: 25 July 2003

JUDGMENT OF THE COURT

[1] The first respondent is the registered holder of an allotment in Pelehake described as Tofi'a 1. He applied for the land in October 1993 and his title was registered on 21 March 1994.

[2] The land had last been registered on 19 December 1928 in the name of Pasilio Va'eno. Pasilio died on 18 October 1931 but his first son, Sini Holani, took no steps to register the land as heir. There was some evidence in the trial court that Sini had farmed the land in the 1970s when the appellant, who is Sini's second son, was in New Zealand. When the appellant returned in the late 1980s, he and his father went to live in Niutoua where the family already held land.

[3] In the court below, the Registrar of Lands gave evidence that the land which was registered in the name of Pasilio had been subdivided in the 1960s. The learned judge came to the conclusion on the basis of the Registrar's answers that there was no evidence to link the land in this case with that of Pasilio. The answers are ambiguous but counsel for the parties agree that is not the case and, although the exact boundaries of the land are unclear, the land in this case is part of the land previously registered to Pasilio. The first respondent is the son of Sini's younger brother, Tava Va'eno.

[4] The amended statement of claim in the lower court alleged an agreement between the parties that the land should be registered in the name of the plaintiff but that, when the second respondent registered it in the name of the first respondent, he was in breach of sections 82, 87 and 54 of the Land Act.

[5] In his judgment, the learned judge drew attention to the fact that counsel for the plaintiff had tried to introduce a number of other grounds of claim in his closing submissions. None had been part of the case presented and some had no evidence whatsoever to support them. The judge quite properly disregarded them. Counsel who accept instructions in cases such as this have a duty to draft accurate and complete pleadings. If, at a later stage, other unpleaded aspects of the case arise, then application should be made to amend. That was not done in this case and the court disregarded the additional matters.

[6] Despite that, counsel for the appellant filed lengthy grounds of appeal seeking to raise these matters again and, on the day of the appeal hearing, put in equally lengthy submissions repeating them and even attempting to introduce fresh evidence. As a result this Court has had to read through a large quantity of material which should never have been advanced in the appeal.

[7] We do not attempt to quote the actual grounds of appeal from the seven pages of largely irrelevant and unnecessary material filed as the Notice of Appeal. It appears from counsel's address to this Court that the basis of the appeal is (1) that the plaintiff had and retained a right to the title to the land under the laws of succession as set out in section 82 and the Minister had a duty to ascertain the right of the members of the family to that land before registering any claim, (2) that the Minister did not publish the notice required under section 54 when land is surrendered so the appellant had no warning that he should apply and (3) that the Minister had no right to grant out any land that has reverted under section 88 because he has not made any regulations for the purpose.

[8] (1) Section 82 establishes the rule of succession to a tax or town allotment. The right, subject to the life interest of the widow and limited to legitimate issue, is traced from the last lawful male holder. It will then pass to the oldest son of the deceased holder and, if he is already dead, to his oldest male heir. If the oldest son has died without a male heir, it will pass to the second son of the lawful male holder.

[9] The evidence before the court was that Sini was the oldest son of Pasilio. However Sini's oldest son was Maue Va'eno. The plaintiff was the second son and, as such would not succeed to Sini's allotment unless the oldest son had died without male heir at the time Sini died.

[10] That was not the case here. The basis of the appellant's assertion of his right of succession is based on the fact that his older brother, Maue, already had an allotment. That does not alter the rule of succession stated in section 82.

[11] Mr Kengike for the appellant referred to the proviso to section 82:

"Provided always that the failure of the deceased lawful male holder of any tax or town allotment to register the same under the provisions of Part VIII Division II of this Act shall not of itself be a bar to the grant to his heir under this section, and that provided the Minister of Lands is satisfied upon enquiry that the deceased person was the lawful holder of the said allotment it shall be lawful for him to effect posthumous registration at the request of the heir."

[12] He appears to be suggesting that means that, whether or not the lawful holder has registered his allotment, the heir may apply and the Minister must grant it to him. That is clearly not the meaning. It provides that, when the heir applies for registration, the fact (if it be the case) the lawful holder did not register will not of itself be a bar to the Minister granting it to the heir in a proper case. In this case, for example, had Sini's oldest male heir applied for the land in question, the fact Sini Holani had not registered the land would not, in itself, have been a bar to a grant by the Minister to Maue.

[13] Section 82 gives the appellant no right to the land, as he is not an heir under the rule of succession in that section.

[14] (2) This can be dealt with very shortly. Section 54 requires the Minister to publish a notice of any surrender of land following which any person claiming to be the legal successor must lodge his claim within 12 months. Failure to do so will result in the land reverting to the estate holder. The appellant's case is that no notice was published and so the opportunity for the appellant to apply did not arise.

[15] As the learned judge pointed out, the requirement of a notice was only introduced by the Land (Amendment) Act 1991 and so did not apply at the time of the death of either Pasilio or Sini. Equally, section 54 deals with land which has been surrendered. There was no evidence that was the case here and this ground of appeal fails.

[16] (3) Section 88 is part of Division VII of Part IV of the Land Act. That division deals with the devolution of allotments. Within that division, section 83 provides for the reversion of allotments to the Crown or the estate holder if the holder dies without leaving any person entitled to succeed. When there is an heir or widow, he or she is required by section 87 to claim within12 months of the death failing which reversion will occur.

[17] What section 88 provides is that, where any allotment reverts to the Crown under these provisions, it shall, unless it is required for government purposes, be granted out again "by the Minister in accordance with such regulations as may be made under this Act".

[18] There are no such regulations and Mr Kengike submits that the Minister may not, therefore, grant any such land out. That is plainly incorrect but, far more fundamental to the appellant's case, is the fact that the land in question is on the estate of the Tu'ipelehake. It is not Crown Land and section 88 cannot and does not apply.

[19] Mr Kengike's challenge to the registration of the land in the name of the first respondent seems to be based on the misapprehension that it was registered in his name because he claimed as an heir of Pasilio. If he had done so, there may have been some support for his objection but the position is clearly that, following the death of Pasilio and (if he left one) of his widow, Sini failed to register the allotment. After 12 months it reverted to the estate holder and was, therefore, vacant land.

[20] When the second respondent applied for the allotment in October 1993, he was simply applying for vacant land and the application was processed and granted in the usual way. The fact his grandfather had been the registered holder may have influenced the estate holder but it was nothing to do with his entitlement to the grant.

The appeal is dismissed with costs to the respondents.

Ward CJ
Burchett J
Tompkins J