Lisiate v 'Eli [2012] TOCA 5; AC 23 of 2011 (12 October 2012)

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

AC 23 of 2011
[LA 21 of 2010]

BETWEEN:

1. 'Aivenihou Lisiate
First Appellant

2. Lautaimi Lisiate
Second Appellant

AND:

Mele 'Eli
First Respondent

Vika Hui
Second Respondent

Tapa'atoutai 'Eli
Third Respondent

Minister of Lands
Fourth Respondent

(Joined by order of the Court of Appeal)

Coram : Salmon J

Moore J

Handley J

Counsel : Mr Niu for the Appellants

Mr Edwards for the Respondents

Date of hearing : 3 October 2012.

Date of judgment : 12 October 2012.

JUDGMENT OF THE COURT

[1] In our judgment of 27 April 2012 we made findings in relation to the argument presented on behalf of the above named appellants and the First, Second and Third Respondents. However we also held that the Minister should have been joined in the proceedings and we made an order that he be so joined (Para. 43). We adjourned the appeal to this sitting of the Court so that the Minister could be heard and the other parties could make submissions in response to the Minister's case.

[2] At the resumed hearing Mr. Kefu appeared for the Minister. No further evidence was called on the Minister's behalf he being satisfied that all the relevant material was before the Court. All parties consented to the resumed hearing continuing with Handley J sitting in the place of Burchett J.

[3] The Minister agreed with the essential conclusions reached by this Court and recorded in the earlier judgment. There are a few matters raised in Mr. Kefu's submissions in respect of which some comment is appropriate. Despite the wording in section 86 of the Land Act [Cap 132] to the effect that a surrendered allotment "shall" be granted to the son of the person surrendering, the Minister agrees with the finding of this Court that the son must submit a claim and in fact did so in 1999. The Minister's submission goes on to point out that the claim could have been lodged at any time after the date of surrender. We agree that is so.

[4] We also wish to clarify an apparent inconsistency in our earlier judgment. In paragraph [36] we comment on a submission made by Mr. Niu and we express the view that section 87 of the Act applies to all types of devolution referred to in Division VII of Part IV. In the following paragraph [37] we say "It may be that section 87 was not intended to apply to a grantee under section 86 but if it was then it has been complied with."

[5] It is in fact not necessary for the purpose of this judgment to make any conclusory finding as to the application of section 87 and indeed Mr. Kefu on behalf of the Minister has expressed doubts as to the correctness of our approach. Accordingly, we now prefer to rely on the statement in paragraph [37] to the effect that if section 87 does apply then it has been complied with. The question of the effect of section 87 should wait for a case where it is directly in issue.

[6] The Parties have now consented to the following orders of this Court:

1. The appeal is allowed and the judgment of the Land Court is set aside.
   
2. The Fourth Respondent (Minister of Lands) shall cancel the following deeds of grants:
   
   • (a) Book 67 Folio 71 to Sione Siuaki 'Eli dated 12 June 1995;
     
   • (b) Book 395 Folio 100 to Tapa'atoutai 'Eli (Third Respondent) dated 30 June 2010; and
     
   • (c) Book 302 Folio 78 to Niulala 'Eli (now registered in First Respondent as widow) date 26 August 2010;
     

And shall issue and register a deed of grant of the whole of the area of 8 acres 1 rood and 0 perch of the tax allotment, purported to have been granted to Sione Siuaki 'Eli in the abovestated deed of grant book 67 Folio 71 dated 12 June 1995, to 'Aivenihou Lisiate (First Appellant).

3. All claims of the First, Second and Third Respondents against the Second Appellant (Lautaimi Lisiate) for damages are dismissed.
   
4. The interim orders of injunction of the Land Court against the Second Appellant dated 23 September 2010 are recalled and cancelled.
   
5. The interim orders allowing the Second Appellant to enter the tax allotment and tend and harvest the crops therein from time to time dated 16 February 2011 are recalled and cancelled.
   
6. All sums of money which have been paid from time to time by the Second Appellant into Court in pursuance of the abovestated interim orders of 16 February 2011 shall be returned and repaid to the Second Appellant.
   
7. There shall be no order for costs against the First, Second and Third Respondents in this Court and in the Land Court. But the costs of the Appellants in the Land Court and in this Court, in the sum of $7, 000, shall be paid by the Fourth Respondent (the Minister of Lands).
   

Salmon J

Moore J

Handley J