Tukuafu v Latu - Full text [2005] TOCA 12; CA 05 of 2005 (15 August 2005)

IN THE COURT OF APPEAL OF TONGA
NUKU'ALOFA REGISTRY

APPEAL NO. 5/2005

BETWEEN:

TEVITA TUNUFA'I TUKUAFU
Appellant

AND:

1. SIONE TU'ALAU LATU
2. MINISTER OF LANDS
Respondents

Coram: Webster CJ
Burchett J
Tompkins J
Salmon J

Counsel: Appellant Mr Niu
1st Respondent Mr Tu'utafaiva
2nd Respondent Solicitor-General (Mrs Taumoepeau)

Dates of hearing: 15 & 20 July 2005
Summary decision given on: 21 July 2005
Date of judgment: 15 August 2005

JUDGMENT OF THE COURT

Preliminary

[1] This is an appeal from a decision of the Land Court (Ford J and Assessor George Blake) dated 31 January 2005 refusing the Appellant's claim for an order removing a Hawaiian restaurant resort built by the 1st Respondent at Kanokupolu, Western Tongatapu, on what the Appellant claims is part of his tax allotment, named Vakaloa.

[2] It was not disputed that the land in question is part of the Kanokupolu Royal Estate, which is listed as a Royal Estate in Schedule II to the Land Act (Cap 132).

[3] The Court of Appeal on this occasion sat as a full Court of the Appeal Judges present in Tonga, as the appeal concerned important principles in relation to Royal Estates. It was accepted that, in addition to the Appellant, the result of the case may have potential implications for other persons who have been granted tax allotments from Royal Estates. In the Land Register and accompanying plans produced in evidence in the Land Court, and seen by this Court, it was clear that in the Royal Estate of Kanokupolu alone there were a number of other tax allotments.

[4] In the Land Court His Majesty The King was 3rd Defendant, but at this appeal the Solicitor-General submitted that, as the 2nd Respondent the Minister of Lands customarily represented His Majesty in Land Court proceedings, His Majesty should be struck out as 3rd Respondent. Although the Appellant did not accept that, in the whole circumstances this Court found that it was appropriate on the basis of an undertaking by the Solicitor-General on behalf of His Majesty that there will be compliance with the ruling of this Court.

Jurisdiction

[5] It was only after the conclusion of argument on the appeal that a question of jurisdiction was raised, but as it has been raised, logically that question must be decided before the Court can proceed to the other issues before it. The question is whether Clauses 50(2), 90 and 92, in particular Clause 92, of the Constitution require that such an appeal be heard by the Privy Council and deprive this Court of jurisdiction.

[6] Clause 50(2) of the Constitution was inserted and Clauses 90 and 92 were amended by the Act of Constitution of Tonga (Amendment) Act 1990. We set out those provisions with the 1990 amendments to Clauses 90 and 92 in italics:

"50. (2) If any case shall have been heard in the Land Court relating to the determination of hereditary estates and titles, it shall be lawful for either party thereto to appeal to the Privy Council which shall rehear the case and the judgement of the Privy Council shall be final.

90. The Supreme Court shall have jurisdiction in all cases in Law and Equity arising under the Constitution and Laws of the Kingdom (except cases concerning titles to land which shall be determined by a Land Court subject to an appeal to the Privy Council in matters relating to hereditary estates and titles or to the court of appeal in other land matters) and in all matters concerning Treaties with Foreign States and Ministers and Consuls and in all cases affecting Public Ministers and Consuls and all Maritime Cases.

92. The Court of Appeal shall have exclusive power and jurisdiction to hear and determine all appeals which by virtue of this Constitution or of any Act of the Legislative Assembly lie from the Supreme Court or Land Court (excepting matters relating to the determination of hereditary estates and titles) or any judge thereof and shall have such further or other jurisdiction as may be conferred upon it by any such Act."

[7] The Solicitor-General submits that the words "relating to the determination of hereditary estates and titles" embrace this case because both the interest of the King in the Royal Estate and the interest claimed by the Appellant in the tax allotment known as Vakaloa are hereditary in nature. But words must always be understood in context and with reference to the subject being addressed. All three provisions of the Constitution in question, in their references to "hereditary estates and titles" are concerned with the Land Court constituted by the Land Act. That Act consistently refers to "hereditary estates" as the estates of nobles who also have titles (see especially sections 11 and 117), while it never refers to the interest of the holder of a tax allotment or town allotment (although hereditary in nature) as an hereditary estate.

[8] In our opinion, it is plain that the Constitutional provisions are not attracted merely by an issue relating to the interest of the registered holder of a tax or town allotment or the interest of someone otherwise having some entitlement to such an allotment. And it is unnecessary, for this case, to decide whether, in the context, the words "hereditary estates and titles" are intended to embrace questions relating to the Royal Estates, as well as the hereditary estates and titles of the nobles. Assuming that the Royal Estates fall within these words, the issue is whether this appeal relates to "the determination of hereditary estates and titles". But in this appeal the Court is not called on to determine the existence or boundaries of the Royal Estate or the application of any Royal title. The decision under appeal was not a determination of hereditary estates and titles, but as to whether a grant of a tax allotment had been validly made. The fact that the tax allotment was on a Royal Estate did not mean that the Land Court made a determination of that Estate. It simply accepted the acknowledged position that the land in question formed part of the Royal Estate. Throughout Tonga, there are very many tax allotments and town allotments on hereditary estates. The Court does not read Clauses 50(2), 90 and 92 of the Constitution as providing that every question about these allotments must go to the Privy Council. Matters "relating to hereditary estates and titles" are rather such matters as may affect the title of the hereditary estate holder or the boundaries of the particular hereditary estate. A great number of appeals has, since 1990, been determined on this basis without any question being raised.

[9] For these reasons, this Court finds that the jurisdictional point must be rejected.

Land Court decision

[10] The Land Court described the circumstances of this case as follows:

"On the "western side" of Tongatapu, as the area is referred to locally, there are a number of popular sandy beaches. During the first half of the year 2000, the first defendant built a special purpose resort on land at Kanokupolu which fronts onto one such beach. In the proceeding, the plaintiff claims that the resort was built on part of his tax allotment without his consent and he seeks an order for the building's removal.

For his part, the first defendant disputes that the allotment belongs to the plaintiff. He contends that the land in question is part of the Kanokupolu Royal Estate and that His Majesty, who is named as third defendant in the proceeding, personally directed him to build the resort in question."

[11] The principal finding of the Land Court was that this tax allotment, as part of the Kanokupolu Royal Estate, was never land available for allocation as an hereditary estate (in the Land Court's words, but meaning a tax or town allotment (api), not an hereditary noble's estate (tofia)). The Land Court was therefore not satisfied that the Appellant had title to the allotment. In addition the Land Court was not satisfied that the Appellant was entitled to be registered as titleholder to the land in question, even if the land had been available for grant. The Respondents were awarded costs against the Appellant.

Grounds of appeal

[12] The principal grounds of this appeal are that the Land Court erred in that it held, in effect, that (a) a hereditary tax allotment could not have validly been granted out of land which was Royal Estate; and (b) as the tax allotment in question was part of the Royal Estate of Kanokupolu, the purported grant of that allotment was invalid. In addition the Appellant says that the Land Court also erred in that it held that there was no evidence that a grant of the tax allotment in question was ever made by King George Tupou I to the great-grandfather of the Appellant.

[13] The 1st Respondent opposed the appeal, principally on the ground that the Land Court was correct in finding that, as part of the Kanokupolu Royal Estate, the land in question was never land available for allocation as an hereditary estate. The 2nd Respondent also opposed the appeal on the grounds that, while the decision of the Land Court stated the correct position in law in relation to Royal Estates after 1927, it did not state the position in law prior to 1927, under which the King could dispose of the land as he pleased, but subject to section 9 of the 1882 Act to regulate Hereditary Lands, which was not complied with, so that the grant to the Appellant's ancestor was not valid.

Appellant's original claim

[14] The Appellant claimed in his Statement of Claim that he is a great-grandson of Viliami Lomu, a resident of Kanokupolu and a loyal and faithful follower and supporter of King George Tupou I. He said that the men of Kanokupolu were granted hereditary tax allotments by the King out of his land of Kanokupolu, the sizes of which varied according to the wishes of those men, and that his great-grandfather Viliami Lomu was granted an hereditary tax allotment of 10 acres 3 roods 1.5 perches. He further said that on Viliami Lomu's death, his widow Fie'alu Lomu posthumously registered the allotment in her name on 7 August 1917.

[15] That registration was borne out by the entry in the Lands Register, which also recorded the succession to the tax allotment through the Appellant's grandfather and father, as well as registrations in the names of his grandmother and mother during their widowhoods. The accompanying plan also showed the allotment marked with the name of his great-grandmother Fie'alu.

Applicable law

[16] The law to be applied when considering the validity of the grant and also the first registration is the law applicable at that time, and not the present law, as appears to have been applied by the Land Court in its determination.

The Constitution

[17] The Constitution of Tonga has always had a provision since its enactment in 1875 in Clause 20 that "it shall not be lawful to enact any retrospective laws". In 1912 Clause 20 was amended, presumably to clear up any uncertainty, to read:

"20. Retrospective laws.

It shall not be lawful to enact any retrospective laws in so far as they may curtail or take away or affect rights or privileges existing at the time of the passing of such laws."

[18] Clause 20 still exists in that form to the present day.

[19] In the original 1875 Constitution Clause 52 provided:

"52. Inheritances of the King and the property of the King is his, to do with it as he pleases. The Government shall not touch it, nor shall it be liable for any Government debt. But all houses built for him by the Government and any inheritance which may be given to him as King shall descend to his successors as the property and inheritance of the Royal line."

[20] That clause was not amended in the amended Constitution which came into effect on 23 October 1882, but that 1882 Constitution contained Clause 119, which stated:

"119. All tax lands shall be hereditary; and anyone possessing a tax land shall pay the sum of two (2) shillings per annum as rent to their hereditary Chief or His Majesty for such tax land. And all taxpayers shall have town allotments together with their inland tax lands, and both will be protected by the Government."

[21] Dr Sione Latukefu, in his much respected book "The Tongan Constitution", referred to by Mr Niu for the Appellant, states at page 57 that this was a new provision in 1880, perhaps the most important of the amendments at that time. He goes on to say at page 58:

"This was the first time that commoners were given hereditary rights to land. The clause aimed at providing security of tenure which would serve as an incentive not only for short term, but also for long term economic production through the planting of cash crops such as coconut and coffee trees. Following this amendment the Legislative Assembly passed the Hereditary Lands Act in October 1882. This law, according to the barrister Mr Guy Powles, who is currently engaged in research on the laws of Tonga and Samoa, is 'a statute of lasting significance in the history of Tonga.' It specified, among other things, the size of tax allotments which were to be 50 x 50 fathoms in Hihifo and in Ha'apai (this was later increased to 100 x 100 fathoms) and 100 x 100 fathoms in the rest of Tonga and Vava'u. As noted above, they were to be hereditary and the widow retained a life interest, subject only to her re-marriage or if she were found guilty of fornication. Each person was entitled to hold only one tax allotment and one town allotment. The Government might request nobles to apportion tax lands to youths who had left school, and after lands had been apportioned to all his people, any remaining could be leased to others."

[22] Under further amendments to the Constitution which came into effect on 21 December 1888, Clause 119 was amended as follows:

"119. All tax lands shall be hereditary in the male line only (but this clause shall not prevent a widow from holding her deceased husband's lands so long as she remains unmarried and chaste) and every person who possesses a tax land shall pay the sum of one dollar ($1) per annum as rent to the Noble or Hereditary Chief or the King for such tax land. And all tax payers having tax land shall have town allotments together with their inland tax lands and both will be recognised by the Government."

Interpretation of the Constitution

[23] The principles governing the interpretation of the Constitution were considered again recently in detail by the Supreme Court in Taione v Kingdom of Tonga [2004] TOSC 48, when it held that, with some modifications, it should adhere to the principles previously expressed in Tu'itavake v Porter [1989] Tonga LR 14, i.e. that the Court must first pay proper attention to the words actually used in context, avoid doing so literally or rigidly, look also at the whole Constitution, consider further the background circumstances when the Constitution was granted, and finally, be flexible to allow for changing circumstances. This Court adopts those statements of the principles of constitutional interpretation.

1882 Act to regulate Hereditary Lands

[24] A number of submissions were made in this appeal in relation to the Act to regulate Hereditary Lands, which was passed by the Parliament on 12 October 1882, ie shortly before that Constitution. The relevant terms of that Act were:

"AN ACT
To regulate Hereditary Lands granted to Chiefs.

Be it enacted by the King and the Legislative Assembly of Tonga, the Legislature of the Kingdom assembled:

Section 1. The short title of this Act is "An Act to regulate Hereditary Lands."

Section 2. To the King belongs all the land, soil, inheritances and premises. And as his Majesty has been pleased to grant to the nobles and other chiefs hereditary lands, this act has been passed by the legislative assembly to regulate the inheritances which his Majesty has promised to grant to the nobles and other chiefs of the King, to become their hereditary lands (kae tuku ae g. momo), it being with his Majesty what hereditary lands shall be granted to chiefs.

Section 3. That in each inheritance there shall be land set apart for the hereditary name, and it shall not be lawful to lease the same to anyone, or for anyone to possess or use the same, but tabu for the hereditary name for ever.

Section 4. ...

Section 5. It is hereby enacted that the size of the tax land of the people at Hihifo in Tonga, and Haapai, shall be fifty (50) fathoms by fifty (50), but in the rest of Tonga and in Vavau the size of the tax land shall be one hundred (100) fathoms by one hundred (100).

Section 6. All such tax lands shall be hereditary, and on the death of any man, his widow shall possess such tax land while she lives and does not marry again, but should she marry again or commit adultery, such tax land shall be forfeited, and shall become the property of the next heir.

Section 7. Anyone who shall possess a tax land shall pay the sum of two (2) shillings per annum as rent, to their Hereditary Chief or to his Majesty, for such land.

Section 8. It shall not be lawful for anyone to possess two (2) or three (3) or more tax lands, and on the death of a person holding such tax land, it shall be with his heir to choose which tax land he wishes to possess, whether his own or that to which he is heir; should he not be willing to accept such tax land, it shall go to the next heir; but should he also not be willing to possess it, it shall go to the next heir, and so on; and should there be no heirs it shall revert to the Hereditary Chief or to the King, as the case may be.

Section 9. Should any tax land have been already apportioned to any person and still in his possession, and the same not being larger than is hereby enacted, he shall continue to possess the same as his hereditary tax land.

Section 10. Any one possessing two (2), three (3), or more tax lands shall choose which tax land he wishes to possess, and the same shall become his hereditary tax land.

Section 11. All taxpayers shall have town allotments together with their inland tax lands, and both will be protected by the Government.

......

Section 17. The tax lands inland and the premises in town shall both be hereditary, ..."

Land laws of 1903

[25] This Court was also referred in submissions to Chapter XVIII, entitled "OF LAND", of "The Law Enacted in 1891 and 1903", approved by the King (George Tupou II) on 8 July 1903, which states in the preamble:

"2. The Laws passed by the Legislative Assembly in the meetings held in 1891 and in 1903 shall be enforced as the Law of Tonga from the day it shall be proclaimed in the Gazette the Law shall come into force.

3. All the former Laws shall be repealed after the proclamation in the Gazette and the Laws passed by the Legislative Assembly in the years 1891 and 1903 shall be the Laws and only that those Laws passed at such meetings of the Assembly shall be valid."

[26] The relevant provisions to which the Court was referred are:

"563. Every Tongan entitled to land.

Every male Tongan subject shall be entitled to a hereditary village allotment and a tax allotment and the Minister of Lands or his Deputy shall grant a tax allotment to every person who has attained the age for paying taxes provided that such person does not already hold a tax allotment. And every tax land so granted shall be recorded in the Register and a deed shall be delivered to the holder signed by the Minister of Lands or his Deputy.

......

566. Former holdings are confirmed.

Any person who shall at the passing of this Act hold a tax allotment shall continue to hold such allotment and shall apply to the Minister of Lands or his Deputy for a deed which shall be forthwith registered."

Vaea case

[27] Reference was made in submissions to the 1974 Tongan Privy Council case of Vaea v Minister of Lands & Fetu'ufuka [1974-80] Tonga LR 13 (PC), which was referred to by the Land Court in its decision. The headnote appears to indicate that an application for the grant of an allotment cannot succeed if the land is part of the Royal Estate, but the Land Court did not accept that headnote as correct, nor does this Court. The report of the case is far too brief to draw any binding juridical precedent from it, and in any event it was not established that the land in question was part of a Royal Estate, so any judicial comments on that matter are obiter dicta and not binding.

Grounds of decision

[28] It is clear from the legislation passed in 1882 that in both Clause 119 of the amended Constitution (repeated in closely similar terms in 1888) and in sections 7 and 8 of the 1882 Act to regulate Hereditary Lands, it is envisaged that rent for tax lands may be payable to the Hereditary Chief or to his Majesty the King and that on reversion such land would revert to the Hereditary Chief or to the King, as the case may be.

[29] Both the rent and the reversion plainly indicate that hereditary tax lands could be (and were) granted by the King from his lands as well as by the nobles or chiefs from their lands. While it is true the 1882 Act To regulate Hereditary Lands granted to Chiefs was not an Act to regulate Royal Estates, so that sections, such as sections 5 and 9, which make no reference to Royal Estates cannot be assumed to relate to them, sections 7 and 8 do make express reference to tax lands granted directly by the King from his lands. That they do so is clear evidence of the Royal practice at the time which made it impossible to speak of tax lands, even in an Act specifically concerned with the hereditary lands of the Chiefs, without making some reference to tax lands situated on what are now known as Royal Estates. Of course, there is nothing in the 1882 Act to prevent the King making grants of tax lands from his own Royal lands.

[30] As a matter of interpretation, the final sentence of Clause 52 cannot be read as a restriction applying to all of the inheritances and property referred to in the first sentence, as to do so would completely negate the wide words of the first sentence. Much more precise words are required to set up an entailed interest and any such provision has to be construed strictly.

[31] In this case, the evidence of surrounding circumstances accepted by the Land Court (though hearsay) included the evidence from the Appellant that his grandfather had told him that the allotment Vakaloa was originally owned by his grandfather's parents. Although the Land Court did not accept that as evidence that the allotment was granted by King George Tupou I (who died in February 1893) to his great-grandfather, there is direct evidence from the Register of Lands that the Appellant's great-grandmother Fie'alu was registered as the holder of the life interest in the allotment in 1917.

[32] While several submissions were made for the Respondents at the hearing of this appeal about the validity of that registration and the difficulty of drawing an inference from that that the Appellant's great-grandfather had held the allotment, there is an evidential presumption of regularity of official acts (in accordance with the maxim omnia praesumuntur rite esse acta). Under that maxim the validity of official acts will be presumed: Halsbury's Laws (4th Ed) Vol 17 Para 118. In this case there are no contrary grounds to displace that presumption.

[33] This Court also accepted the submission for the Appellant that there was an inference that the original grant had been made prior to 1903, or it would have been registered in name of Viliami Lomu, and not his widow Fie'alu, since the 1903 Act provided for registration, while earlier legislation had not. Under Tongan law the registration of a widow plainly implies the earlier title of her deceased husband.

[34] The Land Court also referred to the 1962 Land Court case of Minister of Lands v Manase Kamoto [1923-62] II Tonga LR 132, the background circumstances of which are very similar to the present case, although it dealt with a town allotment. The original holder, the defendant's grandfather, had not registered it, but it was registered by his widow in 1915. The Minister subsequently alleged that that registration was invalid, but the Land Court, following Fifita Manakotau v Hon Vaha'i (31.3.59), held that although registration is evidence of ownership it is not necessary to prove registration in order to prove ownership and that there was sufficient evidence to show that the grandfather was the lawful holder of the allotment. That allotment had also been in excess of the area laid down in the Land Act 1927, but the Land Court ultimately decided, applying Clause 20 of the Constitution, that that could not make a grant before 1927 invalid.

[35] The 1958 Privy Council case of Tokotaha v Deputy Minister of Lands & Vea [1923-62] II Tonga LR 159 (PC), referred to by Counsel for the 1st Respondent in his submissions as authority for title not being complete without a deed of grant duly registered, is not relevant in this case as it dealt with competing claimants for an allotment, one of whom had been registered and had a deed of grant.

[36] It was also clear from the evidence before the Land Court that even in 1997, right up to 2002, both the Palace Office and the incumbent Ministers of Lands referred to the land in question as the Appellant's "tax allotment". The inference from that was that the Palace Office believed that it was the Appellant's tax allotment. There was no evidence in these letters that there was any question raised during that period about the Appellant's right to the land, nor any suggestion that he should be evicted from it as not being entitled to hold it - what was suggested was that he might receive another allotment in substitution, which of course infers that he had a right to the allotment. Indeed the whole purpose of the original letters from the Palace Office in 1997 was not to question the Appellant's right to the allotment, but to request him - as the legal holder - to give up part of it. It was also significant that, although for some unexplained reason the Appellant has never received a document of registration, registration of him as holder of this allotment was made on 8 August 1997, i.e. after he had advised the Palace Office on 16 April 1997 that he did not agree to the request from the Palace Office.

[37] The Land Court accepted the 1st Respondent's evidence that when he told the King about the visit by the Appellant's brother Ngahe after construction had begun, His Majesty had simply told him to go ahead with the work because he had not signed any papers and there had been a mistake by the Minister of Lands and a man in Australia. However there was little elaboration of that evidence, which was hearsay evidence so far as it asserted what His Majesty may have said, and no evidence to support it was given by the 2nd Respondent, and in these circumstances this Court considers that the Land Court could not place great reliance on it against the weight of all the other evidence, given the evidential presumption of regularity. Perhaps His Majesty himself had not been given full information if he made the statement alleged.

[38] Even the letter after the event from the Minister of Lands on 18 February 2002 (which resulted in this action being raised) was written in the terms that it was the Appellant's tax allotment (although it referred to the claim by the Palace Office that it was unlawful for the Lands Department to register the allotment as the town allotment/tax allotment of his mother without first obtaining permission from the estate holder, a requirement which was not substantiated nor supported in the submissions for the Respondents). Indeed while that letter proposed that the excess area could be taken off the Appellant's tax/town allotment and leased to the 1st Respondent, it did not propose that the remainder of the tax allotment Vakaloa should be removed from the Appellant.

[39] For all these reasons, this Court concludes that the Land Court erred in finding that the tax allotment, as part of a Royal Estate, was never land available for allocation as what it mistakenly referred to as an hereditary estate (meaning a tax or town allotment). This Court therefore concludes that, at the time of the first registration of the tax allotment Vakaloa in 1917 the Royal Estates, including the Kanokupolu Royal Estate, were available for allotments, that the tax allotment Vakaloa had previously been granted to the Appellant's great-grandfather, and that the first registration was accordingly valid.

[40] From that time there was a clear and unbroken chain through the Appellant's grandfather, then his father, and then to himself. The provisions for election when an heir inherits an allotment have been part of the law since the 1882 Act, section 8 of which clearly refers to the possibility of reversion to the King, with the implication (as has been pointed out) that the provisions apply to Royal lands. They were effectively repeated in the 1903 Act and now find expression in section 85 of the present Land Act of 1927 (as amended in 1934). Where an heir already holds an allotment, he can elect in succession between that allotment and the allotment of the deceased holder: if he elects to retain the allotment already held by him, the next son can then make an election, but if so and there is a surrender, what is surrendered is the other allotment (not the inherited allotment). So what happened in this case was that, on the death of the Appellant's mother, the Appellant's elder brother elected not to take the allotment Vakaloa and it devolved to the Appellant, who elected to take it, without the need for any official intervention or approval. There was no requirement at that stage, as the Land Court appears to have assumed, for the Appellant to have made any application for the allotment: his written election to take the allotment Vakaloa, which was conveyed in writing by his elder brother (Exhibit P13) was sufficient.

[41] The fact that the allotment is larger than the stipulated area has no bearing on the issue in this case as the grant and first registration took place before the statutory restriction on the size of allotments in section 49 of the current Land Act was first enacted in 1930. Section 49 specifically only refers to grants of allotments made after the coming into force of that provision and, as was held in Manase Kamoto, applying Clause 20 of the Constitution, it could not make a grant before then invalid. As pointed out above, the earlier provisions of sections 5 and 9 of the 1882 Act cannot be assumed to have applied to an allotment from a Royal Estate.

[42] For all these reasons this Court is therefore satisfied that the 2 acres of land in question on which the 1st Respondent has built the Hawaiian restaurant is part of the Appellant's tax allotment Vakaloa, duly registered in his name in the Land Register. The appeal therefore succeeds in principle.

Present law

[43] For the reasons given above this Court does not consider that subsequent amendments to the Constitution or the legislation after the initial registration of the allotment Vakaloa in 1917 are relevant to the main issue in this appeal. However the Land Court based its decision on the present law, and the 1st Respondent's submissions were based on that, so for completeness this Court records that it does not accept the views of the Land Court on the present law, particularly as the Land Court appears at page 13 of its decision to have been under a misapprehension about the exact words of Clause 48.

[44] While section 10 of the Land Act allows the creation of life interests or leases, it does not specifically restrict the creation of hereditary interests. If the King disposes of any land by granting an hereditary life interest in a tax allotment, he still owns the underlying reversionary interest in that land and that interest still descends to his successors, so there is no contradiction of section 48 of the Constitution.

[45] For these reasons this Court also finds that the Land Court erred to the extent that it found that the present law prevented or would prevent any part of a Royal Estate being land available for allocation as what it referred to erroneously as an hereditary estate (meaning a tax or town allotment).

Conclusion

[46] This Court therefore allows the Appellant's appeal, sets aside the decisions below and makes the declaration that the Appellant is entitled to the tax allotment in dispute known as Vakaloa. This Court also reverses the Land Court's findings on costs, so as to award the Appellant costs against the Respondents in the Land Court and this Court.

[47] In terms of the Constitution the Court must apply the Constitution and the law, and in doing so in this case the Court means no disrespect to His Majesty The King in relation to his wish to have the land in question developed, nor to the 1st Respondent, but the Court is sure that the proper application of the Constitution and the law will also be the wish of His Majesty, who it appears may have been misinformed about the correct status of this land.

[48] The Appellant originally sought an order for removal of the Hawaiian restaurant resort built by the 1st Respondent and an order for payment by the 1st Respondent to him of mesne profits of $250 per month. That does appear to this Court to raise a number of practical issues, but at the hearing the Appellant's Counsel Mr Niu indicated that, if the appeal were to be successful, it might be possible for some agreement to be reached between the parties. The Court therefore adjourns the question of the remedy in this case to a future sitting to enable the parties to consider the matter further. In the meantime, unless the 1st Respondent chooses to vacate the land as sought by the Appellant, the 1st Respondent must pay a reasonable occupation fee. The matter is remitted to the Land Court to fix the amount of such a fee, unless agreement can be reached on it.

Webster CJ
Burchett J
Tompkins J
Salmon J