To'ofohe v Minister of Lands [2004] TOCA 12; CA 12 2003 (30 July 2004)

IN THE COURT OF APPEAL OF TONGA
LAND JURISDICTION

AC. NO. 12/2003

BETWEEN:

MATAIASI TO’OFOHE
Appellant

AND:

HON MINISTER OF LANDS
Respondent

Coram: Ford ACJ
Burchett J
Salmon J

Counsel: Ms Tonga for the Appellant
Mr Kefu for the Respondent

Date of hearing: 29 July 2004
Date of judgment: 30 July 2004

JUDGMENT OF THE COURT

[1] Although it was not entirely clear from the pleadings, the appellant's cause of action is based on breach of contract. His late father, Fotu, was the holder of a tax allotment in Ha'apai. The allotment, comprising a total area of 3a 0r 32p, was situated adjacent to a Government quarry. The quarry had intruded onto Fotu's land and the Government had ended up paying compensation for the material removed. In 1985 the Minister of Lands, Hon Tuita, was anxious to obtain the use of more of Fotu's allotment as a source of coral rock for completion of the construction of the Ha'apai airport runway. Fotu at that time was living in New Zealand. The Minister requested him to surrender a total of 2r 1.4p which included the area of 1r 31.6p affected by the unlawful intrusion.

[2] It is the appellant's case that as a result of the approach from the Minister, an agreement was reached between Fotu and the appellant on the one part and the Minister of Lands on the other whereby Fotu, with the consent of the plaintiff, surrendered 2r 1.4p of his tax allotment on the assurance from the Minister that the plaintiff, as Fotu's heir, would be given in exchange an 8 acre allotment in Tongatapu.

[3] In his letter of surrender dated 13 August 1985 addressed to the Minister, Fotu said:

"I have received your decision which was conveyed by the clerk. Therefore I do consent for the surrender of 2 roods 1.4 perches from portion of my tax allotment which is known as Nu'u'anga situated at Pangai Ha'apai, for the work.

Therefore, authority has been given to Masao Paasi to finalise with you an allotment in Tongatapu for farming."

[4] Masao Paasi was Fotu's half brother. He was also a licensed law practitioner. The Privy Council approved the application for surrender on 8 October 1985. The following day the plaintiff swore an heir's affidavit to Fotu's allotment. We cannot tell from the documentation before us how or when the process was put in place but counsel are in agreement that the surrendered land is now in the Government's name.

[5] The appellant commenced proceedings in the Land Court on 21 November 2001. In his statement of claim he alleged that every year after 1985 he and/or Masao Paasi visited the Minister to follow up on the exchange of land agreement but the advice they received was that the Government was still working on it. It is further pleaded that in the year 2000 the then Minister of Lands, Hon Tu'i'afitu, assured the plaintiff that he would be given an 8 acre allotment in Tongatapu from part of the Sia'atoutai subdivision, which was land reverting to the government that had been leased by the Free Wesleyan Church, but nothing came out of that assurance. In his prayer for relief the plaintiff seeks an order that the Minister should grant and register in his name 8 acres from the Sia'atoutai land or, alternatively, an order for payment of $60,000 compensation for the 2r 1.4p surrendered and the rock quarried therefrom.

[6] In his decision dated 9 July 2003, the Chief Justice noted:

"The plaintiff gave evidence that his father was in New Zealand at that time (1985) and so the plaintiff had a meeting with the Minister at which it was suggested that his father surrender the 2r 1.4p. In return the Minister offered him an 8a 'api in 'Eua together with monetary compensation. The plaintiff did not want the compensation or the land in 'Eua. What he wanted was an 8a 'api in Tongatapu and, when he told the Minister, it was promised to him."

[7] After considering that, and all the other evidence before him, including the documentary evidence, the Chief Justice dismissed the appellant's claim concluding that neither Hon Tuita nor any subsequent Minister of Lands had promised 8 acres of land in Tongatapu in exchange for the 2r 1.4p of land surrendered. His Honour said:

"Having considered all the evidence, I am not satisfied that the plaintiff has proved there was any agreement by Hon Tuita to grant 8 acres of land in Tongatapu. I accept the surrender was at the request of the Minister and that land may have been offered in exchange. However, I am not satisfied on balance that the Minister would have offered 8a of the most valuable and scarce land in exchange for 2r 1.4p of even a very productive quarry. There was no land available in Tongatapu and he would have been, I am satisfied, well aware of that fact. . . .

The final sentence in the letter of surrender from Fotu shows the chance of obtaining land in Tongatapu had occurred to the plaintiff's father but there is nothing to support the contention that Tuita accepted that; neither is there anything in the Privy Council decision to suggest any such consideration.

I am satisfied on the balance of probabilities that there was no such promise given by the Hon Tuita or any subsequent minister and the claim for an order allocating land fails."

[8] In relation to the claim for compensation, the Chief Justice noted that no evidentiary basis had been adduced to support the sum claimed of $60,000. While accepting that no compensation had been paid for the land surrendered, His Honour opined that compensation should first be sought from the Government through the Minister and only if the sum offered was inadequate would it be appropriate for a claimant to seek a review by the court. Finally, the Chief Justice went on to uphold a claim advanced by the defendant that the proceeding was statute barred in that it was commenced outside the 10-year limitation period prescribed by section 170 of the Land Act.

[9] The appellant's grounds of appeal are confined to matters of fact and we say at once that he, therefore, faces a formidable task. The principles applicable where an appeal is against findings of fact made by a Lower Court are well-established. They were considered in some detail in the majority judgment of this court in Polynesian Airlines (Investments) Ltd v Kingdom of Tonga (unreported) App No. 13/98, 21 July 2000. In that case, reference was made to Lord Simonds’s well-known speech in the House of Lords in Watt or Thomas v Thomas [1947] AC 484 and to what this court referred to as "the powerful recent statements of principle" in the decisions of the New Zealand Court of Appeal in Rae v International Insurance Brokers (Nelson Marlborough) Ltd [1998] 3 NZLR 190 at 199 and Hutton v Palmer [1990] 2 NZLR 260 at 268. In the latter case, Somers J., delivering the judgment of the Court of Appeal, said:

" . . . an appellate Court is under the disadvantage that it has not seen or heard the witnesses. In a case which depends on an opinion as to conflicting testimony an appellate Court will not interfere unless it can be shown that the trial judge has failed to use or has palpably misused his advantage; it ought not to reverse the conclusions at which he has arrived merely from its own comparison and criticisms of the witnesses and its own view of the probabilities of the case."

[10] An appellant's task in an appeal against findings of fact becomes even more daunting when, as in the present case, the Court has no transcript before it of the evidence given in the Court below. Order 8 Rule 2 of the Court of Appeal Rules 1990 provides that transcripts of proceedings will not be prepared unless requested by a party when lodging a notice of appeal or respondent's notice. No such request was made in the present case. We were told by counsel for the appellant that she had made a request for the transcript at the call-over of cases for the Court of Appeal session but there was also a suggestion that the fee, which needed to be paid in advance, had not been deposited with the Registrar. Whatever the reason, if the transcript was considered important to the appellant's appeal then it behoved counsel to make sure that it was available.

[11] The principal ground of appeal advanced by counsel for the appellant was that the learned Chief Justice erred in his finding that there had been no agreement by Hon Tuita to grant 8 acres of land in Tongatapu to the appellant. We see no need in this judgment to repeat all of the submissions presented to us by counsel in support. Suffice it to say that they fell well short of establishing the proposition contended for. The Chief Justice enjoyed the advantage of hearing and observing all the witnesses and he is in a far better position to assess the value of their evidence than this appellate Court. Even had the Land Court transcript been available to us, we would still have been under this same disadvantage. In short, nothing has been advanced by the appellant's counsel to persuade us that the conclusions reached by the Chief Justice were unsound or not open to him on the evidence.

[12] Ms Tonga quite fairly conceded before us that there was no evidence before the Court to support the appellant's contention of the land exchange agreement apart from the evidence of the appellant himself and Mr Paasi coupled, of course, with Fotu's letter of surrender. The Chief Justice noted that the current Minister of Lands, Hon Fielakepa, had ordered a thorough search to be made of all the files held by the Ministry of Lands both in Tongatapu and Ha'apai but he had been unable to locate any record to suggest that an exchange of land had ever been agreed to.

[13] In a letter dated 19 June 1997 which the appellant wrote to the then Minister of Lands, he made reference to a Mr 'Amanaki Puniani, and indicated that he was actually a witness when the Minister made his alleged promise. We were told by counsel that Mr Puniani was a senior officer with the Ministry of Lands and at the time of the negotiations he would have held the title of either Secretary or Deputy Secretary of Lands. Surprisingly, Mr Puniani was not called as a witness by either party. He may or may not have been able to shed light on the issues in contention. The point we make, however, is that it was up to the appellant to prove his claim and the Chief Justice could only make his findings on the evidence he had before him.

[14] Having reached the conclusions we have on the principal ground of appeal, it is unnecessary for us to go on to consider the limitation point apart from noting, of course, that if no promise had been made by any of the Ministers, as was the finding of the Chief Justice, then no cause of action ever arose to trigger off the statutory limitation period under section 170 of the Land Act.

[15] There has been no appeal against the finding by the Chief Justice that no evidentiary basis had been adduced at the hearing in support of the compensation claim of $60,000. If there was no promise for an exchange of land in consideration for the land taken and the rock quarried, it follows that compensation in one form or another is payable to the appellant by the Crown. It appears from the Land Court judgment that compensation had earlier been calculated and paid to the landholder in respect of the material taken from the allotment by the unlawful intrusion referred to earlier. We have no details, however, as to how that figure was calculated or whether the calculation met with Fotu's approval.

[16] If the land in question had been resumed compulsorily under Part IX of the Land Act for public purposes then the method of determining compensation is provided for in section 143 of the Act but in a case like the present, where the land appears to have been acquired on a less formal basis, the observations made by the Chief Justice no doubt offer a sound practical procedural approach to a claimant seeking compensation. In other situations, as is illustrated in the judgment of Finnigan J. in Havea v Kingdom of Tonga (unreported) CV. 1570/98, judgment dated 31 March 2000, the situation can be more complex and the Court may be called upon to intervene and carry out a compensation calculation.

[17] Before us, Mr Kefu acknowledged that at the Land Court hearing the Crown had conceded that should the appellant fail to obtain the principal relief he sought of the exchange of land, then compensation was properly payable to him by the Crown. Counsel quite properly conceded that that was still the Crown's position.

[18] Part IX of the Land Act provides a code for the taking of land for public purposes and for the payment of compensation. Even though the land in question was not formally resumed by the Crown under those provisions, they still appear to provide an appropriate guide for sensibly determining the outcome of the present case. Part IX does not prescribe any limitation period for claiming compensation and we think a strong argument could be made that compensation should be treated differently from a claim for debt or damages which, of course, would be subject to the statutory five-year limitation period. As it turns out, however, the responsible approach taken by the Crown makes it unnecessary for us to finally determine this issue.

[19] We did hear argument on the question of costs. We have considered counsel's submissions but we see no reason to depart from the usual practice of awarding costs to the successful party. The appeal is dismissed with costs to the respondent.

Ford ACJ
Burchett J
Salmon J