Taufa v Tahaafe [2015] TOCA 7; AC 30 of 014 (31 March 2015)

IN THE COURT OF APPEAL OF TONGA

LAND JURISDICTION AC 30 of2014
NUKU'ALOFA REGISTRY [LA21 of 2013]

BETWEEN:

KISIONE 'OFA HE MO'ONI TAUFA
Appellant

AND:

1. 'ETUATE TAUFA TAHAAFE
2. MINISTER OF LANDS
Respondents

Coram: Salmon J
Moore J
Blanchard J
Tupou J

Counsel: Mr Fonua for the Appellant
Mr 'O. Pouono for the First Respondent
Mr KefuA/AG for the Second Respondent

Date of Hearing : 26 March 2015
Date of Judgment: 31March 2015

JUDGMENT OF THE COURT

[1] This is an appeal against the Judgment of the Lord President of the Land Court made on 29 August 2014 declaring that the first respondent and not the appellant was entitled to the tax allotment "Pava".

Background

[2] The dispute between the appellant and the first respondent, who are brothers, about the entitlement to the tax allotment arose in the following circumstances. The tax allotment "Pava" is situated in Koloua, Tongatapu. The last holder was Finau Taufa, who held the allotment as widow. She died on 28November 2002.

[3] Finau Taufa and her husband 'Inoke Taufa (who died in 1990), had four children namely;

- Loloma Pepa (F) born 25/8/1941

- Kisione Taufa (M) born 20/9/1944 (Appellant)

- 'Etuate Tahaafe (M) born 18/10/1946 (First Respondent)

- 'Ofa Taufa (M) born 17/7/1949

[4] The appellant Kisione Taufa, went to school in Hawaii in 1965 at the Brigham Young University. He lived and worked in Hawaii, married a Tongan woman Patiola Tu'itamala Tauteoli and they had 7 children who were born in Hawaii between the years 1968 to 1985.

[5] In 1977 the appellant became a naturalized American and took up American citizenship. He therefore ceased to be a Tongan subject by virtue of section 4(1) of the Nationality Act (Cap. 59) which stated (at that time) –

A Tongan subject who when in any foreign State and not under any disability by obtaining a certificate of naturalization or by any other voluntary and formal act becomes naturalized therein shall henceforth be deemed to have ceased to be a Tongan subject.

[6] After the death of their mother Finau Taufa, in November 2002, her youngest son, 'Ofa Taufa, swore an affidavit on 7 April 2003 in the form required by the Ministry of Lands, that his brother, 'Etuate Tahaafe (the First Respondent) was the heir to the allotments held by Finau Taufa when she died. In this affidavit, it was stated that the oldest son Kisione Taufa (the Appellant) was naturalised as an American in 1977. This affidavit was lodged with the Ministry of Lands on 4 April 2003.

[7] It appears that the Appellant applied to be registered as heir to the Tax allotment on 17 October 2003. This is mentioned in the letter from the Minister of Lands dated 18 May 2012 to which we will shortly refer.

[8] For reasons unknown, the Minister of Lands and his successors from 2003 took no action with regard to the determination of the lawful heir to succeed to the allotment and the registration thereof, until the current Minister of Lands with his letter dated 18 May 2012.

[9] In 2007 the Nationality Act (Cap. 59) was amended, inter alia, repealing section 4 that took away Tongan nationality from a person who has become naturalised in a foreign country and enacting a new section that read as follows:

"4. The following persons shall be deemed to be Tongan subjects –

(a) any person born in Tonga to a Tongan parent;

(b) any person born abroad of a Tongan father;

(c) any person born abroad of a Tongan mother;

(e) any person naturalised under this Act."

The 2007 Act also allowed under section 17 a Tongan who had lost his/her Tonga nationality to apply for re-admission as a Tongan subject.

[10] Sometime in 2011 the Appellant applied to be re-admitted as a Tongan national. A certificate of his re-admission to Tongan nationality was signed and issued by the Minister for Foreign Affairs on 25 August 2011.

[11] On 18 May 2012, the Minister of Lands wrote to the Appellant and the First Respondent and their younger brother 'Ofa Taufa saying that

"the decision in this letter shall be final and I think it is the most reasonable in accordance with the law".

Of concern to the case before us is the Minister's decision –

"1. To change the tax allotment that was held by Finau Taufa as the widow, to the heir Kisione 'Ofahemo'oni Taufa in accordance with his letter of 17/10/2003"

[12] The decision by the Minister of Lands in his letter of 18 May 2012 led to the claim made by the First Respondent to the Land Court which made the order on 29 August 2014 referred to in paragraph [1] of this Judgment in favour of the First Respondent and now the appeal before this Court.

GROUNDS FOR APPEAL

[13] The appeal is based on the ground that it was wrong and an error in law for the lower court to construe the Land Act so as to take away the right of the Appellant's inheritance under section 82 of the Act when he was naturalised and became a citizen of the United States of America in 1977. Section 82 of the Act states the rules of succession to allotments as follows:

"Subject to the life estate of the widow the succession to a tax and town allotment shall be as follows;

(a) Decent shall be traced from the last lawful male holder;

(b) Only persons born in wedlock may inherit;

(c) The inheritance shall descend in the first place to the eldest son of the deceased holder or if such son is dead to the eldest male heir of the body of such son. If the eldest son of the deceased holder be dead without leaving any male heir of his body the succession shall devolve upon the next eldest son of the holder ......"

[14] Mr Fonua submitted that s 82 does not, interms, limit devolution only to Tongan nationals. The only express criterion is that the person taking title under s 82 be in a familial relationship with the last lawful owner. The section is concerned only with blood lines. I fit was the intent of the law to take away such an important right from a person who met the criteria then the Legislature should provide this in clear and unambiguous language in section 82.

[14] It was common ground during the appeal, though Mr Fonua eventually appeared to resile from this agreed position, that the point in time for the determination of the right of inheritance to the tax allotment in dispute was when the widow Finau Taufa died in November 2002. This, in our opinion is, correct.

[15] A convenient starting point in construing s 82 is the Constitution and the Land Act provisions which reserve the right to a tax and town allotment to male Tongan subjects by birth.

Clause 113 of the Constitution provides that –

"Tongan male subjects by birth of or over the age of 16 years may be granted town allotments and tax allotments ....."

Section 7 of the Land Act provides that –

"Every male Tongan subject by birth upon making application in the prescribed form to the Minister of Lands shall be entitled to receive subject to the provision of this Act a grant of land ..... as a tax allotment."

Section 43(1) of the Land Act provides that –

"Every male Tongan subject by birth of 16 years of age ..... shall be entitled to the grant of a tax or town allotment ....."

[16] Therefore there are two elements required for the entitlement to the grant of a tax and town allotment:

- Male

- Tongan subject by birth

Both elements are clear but the requirement of "by birth" was necessary to distinguish this person from a foreigner who by naturalisation becomes a Tongan subject. Such a person is not a Tongan subject by birth.

Clause 29 of the Constitution states:

"Any foreigner after he has resided in the Kingdom for a space of five years or more may with the consent of the King take the oath of allegiance and he may be granted Certificates of Naturalisation and all naturalised subjects shall have the same rights and privileges as native born subjects of Tonga with the exception that they shall not be entitled to the rights of hereditary tax allotments or town allotments."

Section 9 of the Nationality Act mirrors Clause 29 with regard to a naturalised Tongan and has a proviso saying:

"Provided that he shall not be entitled to a grant of hereditary tax allotment or town allotment."

[17] Our attention was also drawn to the definition of a landholder or holder by Mr Kefu, in section 2 of the Land Act paragraphs (b) and (c).

Section 2 provides:

"landholder" or "holder" means –

(a) as regards Crown Land the Minister of Lands;

(b) any Tongan subject holding an hereditary estate, tax allotment or town allotment;

(c) any Tongan subject claiming to be interested in land which he is legally capable to hold;

(d) any trustee duly appointed by the King, the Minister, or the Court on behalf of any person entitled to succeed to any land on reaching the lawful age of succession in respect of such land;

(e) any person appointed as or acting as trustee or representative for any person beneficially entitled to any land or interest in land;

(f) any person who claims to be entitled to any land or interest in land whether in actual possession or occupation or otherwise.

When s.82 is read with this definition in mind the following appears. Section 82, as we have said, deals with inheritance through blood lines from a "lawful male holder". A person whose claim to the succession is correctly registered will in turn became the lawful male holder. Paras (b) and (c) encompass only Tongan subjects as holders. That suggests that a foreigner cannot become a holder under the operation of s.82. The only other paragraph of possible relevance is para (f) but that part of the definition, which is a general one for the purposes of the whole of the Act, is not apt to describe a holder under s.82, for such a person is not a mere claimant.

[18] When the Appellant became a citizen of America in 1977 he lost his Tongan nationality by virtue of section 4(1) of the Nationality Act. Of interest is that section 6 of the Nationality Act gave to a "statutory alien", which the Appellant would be when he ceased to be a Tongan subject under section 4(1), the right to apply for a certificate of re-admission to Tongan nationality.

[19] With regard to the devolution of hereditary estates among nobles in Part III of the Land Act, we note section 42 which states:

Nothing in this Part of this Act shall apply to any person who is not of Tongan nationality.

This applies only to noble estates and not to the town and tax allotments of commoners.

We agree that such a provision could have been put in Part IV of the Act to cover the devolution under section 82 to put beyond doubt that a foreigner (including a statutory alien) cannot inherit a tax or town allotment. But the provisions we have already discussed indicate otherwise.

[20] A further submission made by Mr. Fonua concerns the equality of all before the law guaranteed by Clause 4 of the Constitution which states:

"There shall be but one law in Tonga for Chiefs and Commoners for non-Tongans and Tongans. No laws shall be enacted for one class and not for another class but the law shall be the same for all the people of this land."

The question is whether clause 4 requires a reading of section 82 in a way that does not exclude the Appellant from his right of inheritance. For the reasons stated above the Appellant had lost his right of inheritance when he became a foreigner. All foreigners and others in the position of the Appellant will be treated the same and have the same rights guaranteed by clause 4.

[21] There remains the claim of equitable estoppel by the Appellant. This was not raised in the lower court and no evidence was led. The issue cannot be raised on appeal.

[22] Mr Kefu, on behalf of the Minister of Lands (Second Respondent), has conceded that the Minister had made an error in law when he made the decisions and directions in his letter of 18 May 2012 and, with reference to the allotment in dispute, his order that it should be registered in the name of the Appellant.

CONCLUSION
[23] For reasons given, we hold that the rightful heir to the tax allotment "Pava" is the First Respondent 'Etuate Taufa Tahaafe.

[24] Based on our findings, we recommend that the Hon. Minister of Lands review his letter and decision of 18May 2012 and seek advice on his decisions regarding other allotments referred to in that letter.

[25] The appeal is dismissed with costs awarded to the First Respondent only, given that the Second Respondent caused the mistake and error of law, to be taxed if not agreed.

Salmon J

Moore J

Blanchard J

Tupou J