Tahavalu v Vakameilalo [2014] TOCA 2; AC 4, 5 of 2013 (9 April 2014)

IN THE COURT OF APPEAL OF TONGA
LAND JURISDICTION
AC 4-5 of 2013
NUKU'ALOFA REGISTRY [LA14-20 of 2013]

BETWEEN :

1. RODERICK TAHAVALU

2. 'OFA TAHAVALU

3. MELI MAHE

4. SIONE SISI

5. SIO FIFITA

6. LONI FAPIANO

7. VEIMAU SONGO'IMOLI

8. 'ISI TU'IFUA

Appellants

AND :

1. TEVITA TATAFU VAKAMEILALO

2. MINISTER OF LAND
Respondents

Coram : Salmon J

Blanchard J

Ward J

Counsel : Mr Fakahua for the Appellants
Mr W. Edwards for Respondent
Mr Kefu SG for 3rd Party

Date of Hearing : 4 April 2014

Date of Judgment : 9 April 2014

JUDGMENT OF THE COURT

[1] The appellants all occupy defined portions of land situated at Halaleva, Ma'ufanga and known as Fonua'eiki.

[2] The first respondent is the registered holder of the land, having succeeded to it as the heir of the previous holder Siaosi Tau'ovelata (Tau) Vakameilalo.

[3] In July 2009 the respondent commenced 7 sets of proceedings. One proceeding was against the first three named appellants, another 5 against each of the remaining appellants and the 7th against a party who took no part in the proceedings. Each proceeding sought possession of the land occupied by the appellants.

[4] In January 2013 the Lord Chief Justice gave judgment in favour of the respondent and made an order that the appellants vacate the land. Appeals were lodged on behalf of all the above named appellants. All proceedings were consolidated for the purpose of this appeal.

[5] The manner on which the proceedings came before the Chief Justice were somewhat unusual. The appellants each filed defences and applied to join the Minister as a third party. They filed affidavits against an application for summary judgment and in support of the application to join the Minister. The application for summary judgment was dismissed. Both the respondent and the Minister also filed affidavits.

[6] The judgment records that the parties attempted settlement between December 2011 and May 2012. On the 3rd May 2012 Mr Edwards, counsel for the respondent, filed a memorandum suggesting the matter be dealt with by way of written submissions and relying on the documents and affidavits already filed. Mr Tu'utafaiva, who was then acting for the appellants, and Mr Kefu, for the third party agreed that the main question was whether the respondent was bound by any promises made to the appellants by his predecessor in title, that further evidence was not needed and that the assistance of an assessor was not required. The Chief Justice proceeded on that basis. Mr Edwards filed submissions but despite extension of time to do so granted by the Judge no submissions were filed on behalf of the appellants or the Minister. Mr Kefu explained to usthat he filed no submissions because his role was to respond to those of the appellants. The Chief Justice was left with the difficult task of deciding the matter on the basis of submissions received from only one of the parties.

[7] Mr Fakahua claimed that Mr Tu'utafaiva did not have authority from the appellants to proceed in this way. However there was no evidence placed before us to support this contention so we proceed on the basis that the appellants were bound by the decision of their counsel.

[8] We have described the procedure followed in this case as unusual. The Land Act clearly envisages that factual issues will be tried by a Judge sitting with an assessor -see s.146 Land Act Cap. 132. Parties cannot waive the requirement of the Act. Indeed this issue forms the first ground of the Notice of Appeal. The respondent and the Minister maintain there were no facts in dispute and we accept that, to a very large extent, this is true and indeed we have concluded that there are no disputed facts which are crucial to a determination of this matter. In Fie'eiki v Fifita [1995] Tonga LR 184. This Court considered an appeal raising the question of the absence of an assessor in a public sitting of the Court. The matters being heard were various applications in the nature of injunctive relief. The Court held there was no role for the assessor to play and that no questions concerning usages or custom arose. We have concluded that the same can be said in these proceedings but it is essential when evidence is being considered to be certain that is so. Accordingly we urge caution in adopting the procedures which were followed in this case. Having said this we acknowledge the very thorough and well reasoned judgment of the Chief Justice.

[9] Turning to the appeal, we have already noted that the first ground claimed that this matter should have been heard by a Judge with an assessor. For the reasons set out above we reject that ground of appeal.

[10] The next two grounds allege negligence and failure to consult on the part of the appellants' former counsel. For the reason already mentioned we reject those grounds too.

[11] Another ground which may be quickly disposed of is the allegation that the claim was statute barred. We are satisfied that the claim was made within 10 years of the time when the right to bring such action first accrued to the respondent. That was when he became the registered holder of the land in March 2002. The proceedings, as already recorded, were issued in July 2009.

[12] The remaining grounds of appeal claim that the appellants entered on to the land with the permission of the former land holder. Various promises are referred to and there is a claim that the appellants were denied natural justice. It is claimed that the "grant" to the respondent was made in the mistaken belief that the land was vacant. Some statements of defence claim that appellants were not notified of the Minister's intention to register the land in the respondent's name.

[13] Before dealing with these issues it is helpful to record important provisions of the Land Act. First it should be noted that this was not a "grant" of land as alleged in the Notices of Appeal. This was a case of succession by an heir. For this reason the decision of this Court in Tafa v Viau [2006] Tonga LR 287 can be distinguished. That case did involve a grant of land where it is necessary for the Minister to be satisfied that the land is "available" for grant. In the case of an heir the Act makes it clear that entitlement is absolute. For example S 54, which provides for the holder of an allotment to

surrender the whole or part of the allotment, provides that, upon surrender, the allotment immediately devolves upon the person who would be the heir of the holder if the holder had died. Division VII of the Act dealing with devolution of allotments leads to the same conclusion as to the absolute entitlement of an heir. These issues were discussed by this Court in Schaumkel v 'Aholeleiand Minister of Lands AC 14 of 2012 Judgment 17 April 2013.

[14] A landholder is prohibited from selling land to another person (s 12) and s 6 provides that "Every verbal or documentary disposition by a holder of any ...allotment which purports to effect a voluntary conveyance, an out-and-out sale, or a devise by will ...is null and void". Sections 4 and 5 emphasise the life interest and hereditary nature of land holdings. All these features were referred to in the decision of the Chief Justice.

[15] In general the only way in which a land holder can convey land to another person is by a surrender under s.54 and a re-grant, and even that will be defeated if there is a heir.

[16] Returning to the appeals, several of the appellants claim to have been allowed to occupy the land by Tau Vakameilalo. However at
the times when this is said to have happened, Tau's father was still alive so that he had no right to grant a licence of any sort to the appellants. Mr Fakahua agreed that in all cases where promises were made concerning occupation or vesting of the land they were not made by the land holder. As to the claims of lack of notice from the Minister, Mr Fakahua acknowledged that there was no evidence from any appellant that notice had not been received. In fact the first 3 appellants acknowledge that they did receive the Minister's notice but did nothing about it. It is also clear that various of the appellants received letters from the solicitors for the respondent but took no steps to commence proceedings to establish an interest in the land. There is no doubt that all appellants have been aware for a lengthy period of time of the respondent's requirement that they vacate the land.

[17] We conclude on the basis of the facts disclosed in the affidavits that none of the appellants had any claim to occupation of the land other than in the form of a revocable licence. The time that has elapsed since the respondent gave notice to the appellants by letter of 28th August 2002 to vacate the land is more than enough to provide adequate notice of revocation. We do not consider that there has been a failure of natural justice.

[18] It is necessary to comment on the notice sent out by the Minister. Despite what we said at para [38] of Schaumkel we consider it good practice for the Minister (as he did in this case) to send notice of intention to register a successor in all cases where the land is occupied by others. There have been cases where a land holder by his words or conduct has been estopped from demanding possession at least during his lifetime: see Matavalea v Uata (PC) 1989 Tonga LR 101. Similarly if the land holder permits another to spend money on land in reliance upon grant of an interest he cannot later claim the interest is not a good one – O G Sanft v Tonga Tourist & Development Co (PC) 1981 – 1988 Tonga LR 113. Notice gives the opportunity for such possibilities to surface sooner rather than later. However, as recorded in Schaumkel, the Minister is obliged in a case such as this to vest the land in the heir.

[19] The appeal is dismissed. Counsel for the respondent and the Minister told us that in this eventuality they did not seek costs. Accordingly no such order is made.

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Salmon J

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Blanchard J

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Ward J