Pekipaki v Fifita [2018] TOCA 19; AC 6 of 2018 (7 September 2018)

IN THE COURT OF APPEAL
LAND JURISDICTION
NUKU’ALOFA REGISTRY

AC 6 of 2018
[LA 4 of 2017]

BETWEEN : SIFA HOLAKINUALEI PEKIPAKI

- Appellant

AND : 1. LANUOLA FIFITA
2. APT FAST FOOD
2. HON. MINISTER OF LANDS

- Respondents

Coram: Handley J
Blanchard J
Hansen J

Counsel: Mr. W. C. Edwards SC for the Appellant
Mr. S. Tu’utafaiva for the First & Second Respondent
Mr. ‘A. Kefu SC for the Third Respondent

Date of Hearing : 3 September 2018

Date of Judgment : 7 September 2018

JUDGMENT OF THE COURT

[1] This appeal from the Land Court challenged the decision of the President who, on judicial review principles, set aside the decision of the Minister to grant a town allotment in Fanga to its former holder who had lost the allotment when he became a United States citizen on 27 May 1982.

[2] The essential facts, summarized below, were found by the President, and are beyond effective challenge in this Court because the oral evidence given below was not before us.

[3] The appellant was granted the town allotment at Fanga, Kolomotu’a in 1971 having already erected a house on it. However he was then living in the United States having migrated there in 1970. He married there and had two sons and two daughters.

[4] In 1978 the respondent Lanuola Fifita went to live on the allotment with her family, doing so at the request of her aunt the appellant’s sister, who asked her to look after the allotment, inferentially at the request of the appellant.

[5] Lanuola has since lived on the allotment with members of her family for an uninterrupted period of 40 years. At the time of the hearing in the Land Court she was living there with a grandson and his mother.

[6] On 27 May 1982 the appellant lost his right to hold the allotment, although neither he nor Lanuola realised this until 2008. This finding was not challenged.

[7] The house built by the appellant on the allotment was destroyed by Cyclone Hino during the 1980s. Lanuola built a new dwelling house on the allotment with help from fellow members of the Seventh Day Adventist Church where she worshipped. Their labour and the building materials they supplied must have been intended for her benefit and not for the benefit of the appellant who had no known link with that church. Thus the dwelling house on the allotment is the property of Lanuola.

[8] Lanuola developed the allotment by doing substantial filling work on swampy parts with rock to enable it to be built on. She also built a restaurant on the allotment which is leased to some Chinese.

[9] In or about January 2008 Lanuola learnt that the appellant had become a United States citizen and thus had lost the allotment. In February 2008 her son Sioeli applied to the Minister for the allotment.

[10] At a meeting with the Minister on 28 February 2008 the appellant was told that he had lost the allotment, but that recent changes in the law enabled him to apply to be readmitted to Tongan nationality.

[11] The Minister told the appellant that he could apply for a lease of the allotment.

[12] At some stage during 2009 the appellant and Lanuola met with the Minister when the possibility of subdividing the allotment was discussed. The President found that the Minister decided that the allotment should be subdivided, with half to the appellant by lease and half to Sioeli.

[13] The appellant and Lanuola met with an officer from the Ministry separately to discuss the subdivision. Lanuola made frequent enquiries over the following years about the progress of the subdivision and was told that the Minister had decided that the allotment should be subdivided but nothing effective was done to implement that decision. The relevant file has been lost.

[14] Lanuola’s second husband died in 2015 and Sioeli, his heir, inherited his father’s town allotment at Longolongo and could no longer claim the subject allotment.

[15] Acting on the advice of Mr Halatanu, an officer in the Ministry, Lanuola caused her grandson Kelepi Tangi to apply for the allotment on 8 June 2016 after he attained his majority at age 16.

[16] The appellant became a Tongan national again on 26 September 2016 and applied for a regrant of the allotment on 28 September.

[17] On October 2016 at 4pm Mr Halatanu inspected the allotment and later made a formal report which the President set out in full. He met Lanuola who claimed to be the owner of the dwellinghouse and the restaurant.

[18] Lanuola referred to the application by her son Sioeli but said that because he had inherited his father’s town allotment at Kolomotu’a an application had been made by her grandson who was living on the property.

[19] On the same day the Minister and Mr Halatanu met the appellant and Lanuola, presumably after the inspection. Mr Halatanu took minutes of the meeting which the President held recorded the matters discussed.

[20] The minutes record the Minister asking Lanuola about her connection with the appellant and after she said that he was her uncle the Minister referred to some of the history, how the appellant lost the allotment, but had now regained his Tongan nationality, that the parties could not agree, and that Lanuola lived there.

[21] Lanuola was asked by the Minister why she held on to “the allotment of your uncle” and she replied, “I am attached to the allotment as it has been more than 30 years to which I have lived there.” The Minister then asked her “What was the reason you had moved to the allotment after Sifa (the appellant) had registered it?” She replied “I was meant to watch over the allotment.”

[22] The Minister then said “you had an opportunity during Tevita’s time (the previous Minister) and you tried for your son but the allotment [at Longolongo] was already transferred to him... and as it stands I think to return the allotment to... your uncle....”

[23] On 25 October the Minister sent a savingram directing that the allotment be surveyed and granted to the appellant. He stated that the appellant lost the allotment on 25 February 2008 because he had become a foreign national. The Minister mistook the law because the loss occurred 28 years earlier in 1982. His reasons for rejecting the claims of Lanuola and her grandson were:

“His niece..... is currently living at the allotment and a claim for the allotment was made by her grandson but I do not accept it because they have been living at the allotment for so many years because of her maternal uncle’s (Sifa) kindness.”

This evidenced the same mistake of law because the appellant’s kindness had ceased to operate in 1982, not 2008.

[24] The allotment was registered in the name of the appellant on 19 December 2016 under Deed of Grant 439/46.

[25] The President held, following Naulu v Tupou [2016] Tonga LR 163 CA, that the Minister was obliged to take reasonable steps to ascertain whether the land was subject to some other claim which may not necessarily be a competing application but might arise from occupation and use of the land. Accordingly the Minister was obliged to consider Lanuola’s history of occupation and development. A detailed investigation had to be carried out: Naulu (above).

[26] The President set aside the grant to the appellant on four grounds which supported judicial review of the Minister’s decision, three of which involved errors of law and two procedural impropriety. He said:

“The evidence satisfies me that the Minister’s decision ‘went wrong’ in at least four respects. First, he failed to make proper and reasonable enquires about material matters. Secondly, and related to the first matter, the Minister failed to observe natural justice as Lanuola was not given a reasonable opportunity to state her views on the material facts or the Minister’s reasons for his decision. Thirdly, the Minister’s reasons for making his decision were incorrect and based on a mistaken understanding of the facts. Fourthly, the Minister failed to give any consideration to Kelepi’s application.”

[27] The findings of fact supporting these conclusions cannot effectively be challenged.

[28] The third ground, the Minister’s mistaken view of the facts, is not itself a ground for judicial review but is relevant because it shows that the other errors were material and led to a flawed decision.

[29] In Council of Civil Service Unions v The Minister for the Civil Service [1985] AC 374, 410 Lord Diplock said:

“ ... one can conveniently classify under three heads the grounds upon which administrative action is subject to judicial review. The first ground I would call ‘illegality'; the second ‘irrationality’ and the third ‘procedural impropriety’. By ... illegality ... I mean that the decision maker must understand correctly the law that regulates his decision making power and must give effect to it.”

[30] The President held that the Minister failed to make proper enquiries because, at the meeting on 12 October 2016, he did not ask Lanuola about the work she had done on the allotment, how the buildings came to be there, who owned them, what they had cost, and who was in occupation. All of these matters were material to his decision: Naulu v Tupou at [19].

[31] The Minister relied on the opportunity Lanuola had to claim the allotment (through her son) while the Hon Tuita was the Minister, and said she had not made proper efforts. The President held that if he intended to rely on this he was bound to make reasonable enquiries of Lanuola before doing so. The Departmental records relating to her son’s application had been lost. Lanuola was not asked about the efforts she had made to progress his application, She was not given an opportunity to tell the Minister more about her son’s application, her dealing with the Hon Tuita, his decision that the allotment should be subdivided, her contacts with Ministry staff, and the facts about her grandson’s application. The President found that the Minister did not know the extent of Lanuola’s efforts in support of her son’s application because he did not ask her about them.

[32] Moreover the Minister did not ask relevant questions before acting on his second reason for granting the allotment to the appellant, that Lanuola’s family had been living in the allotment for so many years “because of [the appellant’s] kindness.” If Lanuola had been asked about this she could have told him that this was only true in any sense during the years 1978-1982 but the appellant had migrated to the United States in 1970. The invitation to Lanuola to look after the allotment showed that this was for the benefit of both parties and not a simple act of kindness on the appellant’s part. The President found that between 1970 and 2005 the appellant “had little, if anything, to do with his allotment.”

[33] When the appellant lost the allotment in 1982 he could no longer give Lanuola permission to live on the land, and could extend no further kindness to her. The Minister was mistaken in thinking that the appellant only lost the allotment in 2008 when the grant was cancelled,

[34] Basing himself on the minutes of the meeting on 12 October 2016 the President held that Lanuola did not have an opportunity to state her views on material matters or on the Minister’s reasons for his decision.

[35] In our judgment the findings of the President establish that the Minister’s decision was vitiated both by procedural impropriety in that Lanuola was denied natural justice, and by illegality in that the procedure adopted leading to his decision did not comply with the standards required by law. This was established by the Privy Council in Vaea v Minister of Land [1974-1980] Tonga LR 13, 14 which held that “All the factors relevant to the claims of the parties must be considered and taken into account”.

[36] The Minister’s decision was also vitiated because he mistook the law when finding that the appellant remained the holder of the allotment until 2008.

[37] The appeal is dismissed with costs.

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Handley J

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Blanchard J

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Hansen J