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Court of Appeal of Tonga |
IN THE COURT OF APPEAL OF TONGA
LAND JURISDICTION
NUKU’ALOFA REGISTRY
AC 12 of 2017
[LA 22 of 2015]
BETWEEN : SIASI TOKAIKOLO ‘IA KALAISI
- Appellant
AND : 1. POHIVA TU’I’ONETOA
2. KAVA FA’OLIU
3. SIONE HAVILI MAILE
4. MO’UI FO’OU ‘IA KALAISI FELLOWSHIP
5. MINISTER OF LANDS
- Respondents
Coram : Handley J
Blanchard J
Hansen J
Counsel : Mr. W. C. Edwards SC for the Appellant
Mr. L. M. Niu SC for the First to Fourth Respondents
Mr. S. Sisifa SC for Fifth Respondent
Date of Hearing : 19 March 2018
Date of Judgment : 26 March 2018
JUDGMENT OF THE COURT
Introduction
[1] This case is about who has the better entitlement to receive a lease of land at Kolomotu’a. Ownership of a church and other buildings situated on that land is also disputed. The contestant parties are, on the one hand the appellant, Siasi Tokaikolo ‘Ia Kalaisi (also known as Tokaikolo Christian Church International), a Church which has been incorporated with a constitution and has been registered under the Charitable Trusts Act 1993 and, on the other hand, the first four respondents. The fourth respondent, Mo’ui Fo’ou ‘Ia Kalaisi Fellowship, is an unincorporated church fellowship. The others are representatives of Mo’ui Fo’ou ‘Ia Kalaisi and evidently hold office in it. The first respondent, Dr. Pohiva Tu’i’onetoa, was previously the Treasurer of the Church at Kolomotu’a. The second respondent, Rev. Kava Fa’oliu, was until 2013 the Church’s Minister or Pastor at Kolomotu’a. The third respondent, Rev. Sione Maile, was until 2013 the Secretary-General of the Church.
[2] The origins of the Church go back to 1978 when the late Rev. Senituli Koloi resigned from the Free Wesleyan Church to lead a breakaway
movement that became known as Feohi’anga Tokaikolo ‘Ia Kalaisi or The Tokaikolo Fellowship in Christ. Somewhere between
3000 and 4000 people left the Wesleyan Church to join the Tokaikolo Fellowship.
[3] Some details of the origin and history of the Fellowship are to be found in para [16] et seq of Scott J’s judgment below. Rev. Koloi spoke of the need for a personal relationship with Christ. He believed that the Wesleyan Church had developed undesirable traditions and customs. Scott J described him as “very much in the anchorite tradition”.
[4] Regrettably Rev. Koloi died suddenly in February 1980. Rev. Dr. Liufau Saulala quickly assumed leadership of his Tokaikolo Fellowship movement. It rapidly expanded under his leadership and its practices changed over time. Rev. Koloi had scorned feasting, displays of wealth, excessive obeisance and all forms of ostentation. He believed in the priesthood of all believers and the equality of all men in the eyes of God. Some members of Tokaikolo evidently became concerned that under Dr. Saulala’s leadership there were what they considered to be excesses in the conducting of Church celebrations and undue honouring of persons of high status, such as nobles or members of the Royal Family. Examples are given by Scott J (paras [49] et seq).
[5] The Fellowship expanded within Tonga. It established overseas branches. It held a convention in Sydney in 1994 at which it was decided that the Fellowship would become a church and change its name to the present name of Siasi Tokaikolo ‘Ia Kalaisi. Dr. Saulala’s title changed from the Leader of the Church to its President. He still holds that position.
[6] At the Church’s annual convention in 2003 the adoption of a constitution was approved. It was apparently registered in 2004, thus incorporating the Church, but we have not been provided with a copy of this first constitution. It can however be assumed to be similar in its essentials to a second version registered in 2007 which we have read. References hereafter to the Constitution are to the 2007 Constitution. There was some faint attempt on the part of the first four respondents to raise a challenge to the validity of the Constitution by impugning the way in which it came to be adopted. But no evidence to which we have been referred supports this assertion and it is to be noted that two of the respondents were on the Church’s Constitution Committee at the relevant time and do not seem to have voiced objection.
The land and buildings at Kolomotu’a
[7] Members of the former Fellowship and now Church from Kolomotu’a were unable to worship there. They were part of the Havelu Kolomotu’a Parish and worshipped at the Havelu Church. In 2002 they sought permission from the Church to have their own parish and place of worship. They also sought permission to raise funds through the San Francisco branch of the Church in order to purchase some land at Kolomotu’a that Mrs. Neomai Holani was willing to make available to them by surrendering her interest in seven lots in order that an application for a lease could be made by the Church to the Minister of Lands. Permission was given. Dr. Saulala, as President, gave Dr. Pohiva Tu’i’onetoa a letter to take to San Francisco. The equivalent of TOP$50,000 was raised there and was used to acquire the land. The surrender of Mrs. Holani’s interests was approved by Cabinet and a lease application lodged, but in the former name of Feohi’anga Tokaikolo ‘Ia Kalaisi. As well as not using the then current name of the Church, the lease application failed to include one of the seven lots (Lot 22), which was separated from the other six by a road. It is also to be observed that the named entity was unincorporated and thus incapable of receiving a valid grant of lease.
[8] The lease application was nevertheless approved by Cabinet on 23 November 2005 and a direction for a survey and preparation of a lease document was given.
[9] However, before this process was completed, Rev. Maile, in his capacity as Secretary-General of the Church, evidently appreciating that mistakes had been made, wrote to the Ministry asking for the lease application to be cancelled so that a fresh application could be lodged. On 13 December 2006 Cabinet therefore cancelled the earlier application. The new lease application covering all seven lots was signed by Mr. Tu’i’onetoa on behalf of Siasi Tokaikolo ‘o Kolomotu’a. The Ministry recorded it as an application by Tokaikolo Christian Church and Cabinet gave its approval on 5 September 2007.
[10] Unfortunately, however, the cancellation and the new application were not drawn to the attention of officials who had been processing the first (cancelled) application and eventually the Ministry on 18 September 2009 purported to register under No. 7739 a lease of the six lots to Feohi’anga Tokaikolo ‘Ia Kalaisi. That lease was unlawful, as Scott J recognised, but he seems to have overlooked ordering its removal from the register. In fact, as will be seen, the supposed lease was used as security for a loan raised from Tonga Development Bank in the funding of the construction of buildings in the land. (The bank has been repaid and a discharge of the mortgage is recorded on the register.)
[11] On 17 January 2006 Dr. Tu’i’onetoa made a building permit application on behalf of the Church for the building of the church and a hall at Kolomotu’a. He gave the owner’s name as “Tokaikolo Church”. Two days later, Rev. Maile, writing as Secretary-General, and saying that he represented the President of the Church, Rev. Dr. Saulala, sought permission from the Minister of Lands to allow those works to be carried out. He explained in his letter to the Minister that:
Your Ministry requires an authorisation letter from the leader of the Church to authorise the building.
[12] Construction commenced in 2007 and fundraising for that purpose was carried out both in Tonga and overseas. However, in 2008 it was necessary to approach the Tonga Development Bank to cover a shortfall. It agreed to advance TOP$130,000 (later increased to over TOP$200,000) secured against the registered lease and with guarantees from Dr. Tu’i’onetoa and three other members of the local congregation. As we have noted, that borrowing was subsequently repaid in full.
[13] The total cost of construction was a little over TOP$500,000. The new church building was dedicated on 29 December 2009 by Dr. Saulala. A booklet was prepared by Dr. Tu’i’onetoa and the Church Secretary for Kolomotu’a, Hepeti Takeifanga. Its cover page states that it is for:
Opening Ceremony Church Building Tokaikolo ‘Ia Kalaisi Church of Kolomotu’a
The booklet names Dr. Tu’i’onetoa as Treasurer of the Church at Kolomotu’a.
The respondents break away
[14] On 8 July, 2013 Rev. Maile voluntarily resigned as Secretary-General of the Church and subsequently established the Fourth Respondent, Mo’ui Fo’ou ‘Ia Kalaisi Fellowship. In his resignation letter to Dr. Saulala he made no complaint about Dr. Saulala’s leadership and said only that he had been led by the Lord in Genesis 12:1 – 4 to move to a “New Life” in a new Fellowship. On 16 August 2013 Rev. Kava Fa’oliu, the Second Respondent, who had been the Pastor at Kolomotu’a, also resigned. He expressed gratitude to Dr. Saulala. He gave no reason for his resignation. He advised the congregation of his resignation the next Sunday, telling them that he was handing the administration of the parish to the deacon, Rev. Sione Koloi. However, Dr. Tu’i’onetoa then intervened and said that the properties would be handed over to Rev. Maile and Fo’ui Fo’ou ‘Ia Kalaisi Fellowship. When Rev. Sione Koloi returned to the church after taking an elderly person home he found the church locked up. Dr. Tu’i’onetoa refused to give him the keys. Those members of the congregation who did not wish to leave Tokaikolo were subsequently excluded from the church buildings which have since that time been occupied and used by members of the fourth respondent, including the First to Third Respondents. Access by Tokaikolo and its adherents has been refused.
[15] A list prepared by Rev. Fa’oliu at the time of the breakaway shows that 26 members were remaining with Tokaikolo and 32 members including Dr. Tu’i’onetoa were leaving the Church. Those remaining have ever since worshipped in the private home of one of their number.
[16] On 27 September 2013 a letter was written to Dr. Tu’i’onetoa conveying the decision of the Tokaikolo Church Parish to remove him from membership. Dr. Tu’i’onetoa sued Dr. Saulala and the Church in January 2014 seeking, inter alia, a declaration that his dismissal as a member of the Church was wrongful. He pleaded that he had been “a member of the Tokaikolo Christian Church” for the past 35 years and a member of its Kolomotu’a congregation. He relied in his pleadings on the Constitution of the Church. He referred to what he called the splitting of the church in two in 2013 “amidst public allegation of sexual impropriety and financial mismanagement” by Dr. Saulala. No complaint about Dr. Saulala’s preaching was made.
[17] On 12 September 2014 portions of Dr. Tu’i’onetoa’s Statement of Claim were struck out. We are not aware whether this litigation is continuing.
Tokaikolo’s claim and the defences
[18] Tokaikolo issued its Statement of Claim against the first four respondents on 4 August 2015. In its Amended Statement of Claim dated 15 December 2016 it seeks an order declaring its ownership of the land and buildings, an order for immediate possession of them to be given to it, damages for conversion and costs. (Mr. Edwards SC advised us that the claim for damages is not being pursued). In their Statement of Defence the respondents deny Tokaikolo’s ownership, pleading that the properties at Kolomotu’a were not acquired or built in the name of Tokaikolo, but, rather, “in the name of the fellowship of the members of Kolomotu’a themselves for themselves, for which purpose they themselves contributed and raised the funds and took out a loan from the bank”. The first to fourth respondents were permitted to join the Minister of Lands as a Third Party.
[19] A second and alternative defence, raised for the first time in an Amended Statement of Defence, is that the Church has departed from the tenets and beliefs upon which it was established in 1978. This departure is said to include the use of the term “church” instead of the word “fellowship”. In relation to this it is pleaded that Dr. Saulala directed the change of name to that of “church” in 1994. It is also complained that he has taught and preached that the personal salvation and spiritual well-being of one person was sufficient to constitute salvation and spiritual well-being of others in his own household and that this teaching is in breach of the tenets of Tokaikolo.
The Supreme Court judgment
[20] Scott J helpfully gave a detailed account of the history of the Tokaikolo Fellowship/Church and the evolution of its practices, including instances of discontent by some members with Dr. Saulala’s leadership style. Part of that concern related to alleged financial mismanagement. We do not discuss this material because, in our view, it has no relevance to the appellant’s claim. Financial mismanagement, even gross mismanagement, does not impact on a question of whether the Church has title to land or buildings. Similarly, the fact that the internal management of the Church may have been unsatisfactory, if that be the case, has no bearing on whether it has a valid claim to the properties in issue.
[21] Scott J referred to what he said was the only doctrinal dispute between the parties, namely over the concept of salvation through households, which Dr. Saulala conceded he had not preached until 2013. But the Judge said he saw no need to resolve this issue.
[22] The Judge then traversed evidence about the funding and construction of the church buildings. He made particular mention of an unsuccessful approach to Westpac Bank for a loan to complete the project. The Church had declined to guarantee any loan to district churches. Scott J said that the Tonga Development Bank had come to the rescue, agreeing to advance the necessary funds “on the strength of guarantees by four members of the Kolomotu’a congregation”.
[23] At paras [123] – [135] the Judge set out his conclusions on the question of whether the land and buildings were the property of Tokaikolo. He began by summarising the “fundamental submissions of the parties”:
The first is that the Church buildings at Kolomotu’a were built and paid for with the intention that they would become the property of the Tokaikolo Church; secondly, that they so became and thirdly, that having broken away from the Tokaikolo Church the Defendants then converted these properties to their own use.
The Defendants, on the other hand first deny that the buildings ever became the property of the Tokaikolo Church and secondly, say that the primary aim of the constructions was to provide a place of worship in the Tokaikolo tradition in Kolomotu’a. Thirdly, they say that even if the Court were to hold that the buildings became the property of the Tokaikolo Church, the Church forfeited the right to continue owning those properties by departing from fundamental beliefs and practices of the Tokaikolo movement as founded by Senituli Koloi.
[24] Scott J said that Tokaikolo’s strongest argument was that the raising of funds overseas was with the approval and support of its President. The problem with that, in his view, was that the total sums contributed from overseas were nowhere near the sums raised and contributed by the respondents, their families and supporters. There was nothing to suggest that funds collected overseas ever became part of the funds of the Church rather than “their overseas cousins” which, the Judge said, were distinct legal entities. There was evidence that social functions were specifically directed at expatriate Tongans with Kolomotu’a connections, whether or not they were members of the Church. Funds raised overseas were never paid to the central office of the Church. The only direct contribution by Tokaikolo Headquarters were $5000 on the opening day and $30,000 which was promised but which the Judge doubted was paid. The “overwhelming effort” of physical labour was put in by residents of Kolomotu’a, their friends and family, and Headquarters “contributed nothing at all”. Those who contributed most made up the great majority of those who broke away.
[25] Scott J then referred to various provisions of the Constitution of Tokaikolo concerning acquisition of land, construction of buildings, payment for such projects and mortgaging. He accepted the first to fourth respondents’ claim that these had not been complied with. He noted in particular that the loan from Tonga Development Bank had not been guaranteed by Dr. Saulala and another office holder as he said the Constitution required. We pause to comment that this assertion about what was required is quite wrong. The provision to which the Judge referred requires that loan documents be signed by particular office holders on behalf of the Church. It says nothing about the giving of a guarantee of the Church’s liability by a third party.
[26] The Judge commented that the Church had not complied with the requirements of the Charitable Trusts Act 1993, especially in relation to listing the Kolomotu’a buildings as part of its declared assets, nor had the vesting or mortgaging of the property been advised to the Ministry of Lands as the Act required. There was no reference to the registered name of the Church, Tokaikolo Christian Church International, in any of the documents produced by the Registrar of Charities.
[27] Scott J was also unwilling to draw from the fact that Dr. Saulala opened the new building that the Church was the owner of the building. He said:
[132] It is important to bear in mind that the fundraising and construction of the Kolomotu’a buildings took place between 2002 and 2009 but that the breakaway by Sione Maile and his followers did not occur until 2013. It is plain therefore that all the money contributed was, if not merely for the use of Kolomotu’a, for the use of the Tokaikolo congregation in Kolomotu’a. In the absence of any formal steps to include the new buildings among the assets of the Tokaikolo Church as required not only by its own constitution but also by law I find it hard to see how legal ownership of the properties can be claimed by the Plaintiff.
His conclusion was that the church and associated building at Kolomotu’a never became the property of Tokaikolo.
[28] On the second defence, that Tokaikolo was not entitled to the properties because it had departed from its original tenets and principles, Scott J said that the only strictly theological issue raised by the first to fourth respondents was the question of household salvation. The other departures from the vision of Senituli Koloi were practical or procedural. All churches tended to evolve. But a significant group of members had taken the view that under Dr. Saulala’s stewardship Tokaikolo had significantly and unacceptably departed from several fundamental principles upon which the Tokaikolo Fellowship was established. Unfortunately, Scott J did not identify these departures other than the issue of household salvation.
[29] The question, the Judge said, was whether a significant body of members arrived at the conclusion that Tokaikolo had lost its way. He was satisfied that they did and that their conclusion was not without foundation. But he left the matter of the second defence unresolved.
[30] Scott J then expressed the view, without making any formal order or declaration, that a lease of the properties at Kolomotu’a should be granted to Mo’uifo’ou ‘Ia Kalaisi Fellowship and dismissed Tokaikolo’s claim. Tokaikolo appeals.
First defence – did Tokaikolo obtain title?
[31] Having considered all the materials put before us and the submissions of counsel, we are in no doubt that Scott J was wrong to hold that the church and other buildings at Kolomotu’a did not become the property of Tokaikolo. We begin, however, with the land. In our view, there was clearly an intention on the part of Mrs Holani to that effect. Her applications to surrender the seven lots referred to a leasing to Siasi Tokaikolo or to the work of the church. When advice of Cabinet’s approval of the surrender of three of the lots was conveyed to Mrs. Holani the Ministry referred to the proposed surrender being “for Siasi Tokaikolo ‘Ia Kalaisi to apply for a lease”. That purpose was the same for the other lots. There is no record of Mrs. Holani objecting to that.
[32] The Church itself shared the same intention. It seems that a mistake was made in the original application because the old, and now incorrect, name of Feohi Tokaikolo, an unincorporated body which had ceased to function after 1994, was used. But the Secretary–General of Tokaikolo, the third respondent, corrected this mistake by asking for cancellation of the Cabinet’s lease approval (which was done). A new application was made by Siasi Tokaikolo signed on its behalf by Dr. Tu’i’onetoa. On 26 November 2007 Cabinet approved a lease to “Tokaikolo Christian Church”. Plainly that was intended to be a lease to the Church which had by then been incorporated for several years. There was no other body who could have been intended to be the lessee. The fourth respondent had not then been formed and, in any event, it is unincorporated and thus not a body recognised by law so as to be able to be a lessee under a grant of lease. So we find that the title to the leasehold interest in the land on which the buildings were to be constructed must have been intended to be held by the Church. There is simply nothing to indicate otherwise.
[33] So far as the fundraising for the building works is concerned, the preponderance of the relevant evidence points clearly to the conclusion that contributions were solicited from donors on behalf of the Church to be used for those works at Kolomotu’a. In other words, they were solicited for the new parish at Kolomotu’a so that they could be, and would be, expended on constructing the church and other buildings. It would have been a breach of faith, perhaps amounting to a breach of trust by the Church, if they had not been so applied. But it has never been suggested that they were not. In short, the Church raised the money so that it could build a church and hall and residence for the Kolomotu’a parish community and that was duly done. The church building was dedicated to that community but cannot be regarded as other than the property of Tokaikolo.
[34] It is immaterial whether the moneys raised passed through the central bank account of the Church. The fact that some moneys may have gone directly from , say, a fundraising in New Zealand to Kolomotu’a, does not mean that they did not became the property of the Church, even if impressed with a trust under which they could only be used for the works at Kolomotu’a.
[35] It is worth making the point also that there is no proof that the various branches or parishes of the Church, in Tonga and overseas, were ever separately incorporated. On the evidence before us, they are simply districts or parishes of the Church. A gift to a parish is a gift to the Church to be used in the parish: see by way of analogy Hall v Job [1952] HCA 57; (1952) 86 CLR 639 at 654. The words of the High Court of Australia in that case (at 650) – a case about an unincorporated subordinate lodge of the Loyal Orange Institution of NSW Inc. – are apposite and can be adapted to depict the situation of the Church’s parishes:
The [parish] does not exist as a society of persons who desire to associate exclusively with one another for agreed purposes; it exists as an integral part of a larger organisation, of which all the members are associated for the pursuit of purposes common to them all in accordance with the constitution which governs them all. A [parish] is therefore not to be considered as if it were an association by itself; it is in truth a branch of the [church], a section of its membership, which provides, for those who belong to it or may be admitted to its meetings, machinery for the enjoyment of the rights and benefits and for the performance of the obligations and functions, which are the incidents of their membership of the [Church].
[36] Scott J was apparently influenced in his conclusions by the fact that the central office of the Church, which he called its Headquarters, paid for only a small portion of the project and, as the Judge understood it, refused to make itself liable for the loan from the Tonga Development Bank which covered the temporary shortfall of funds. However, the Church’s almost complete reliance on donations from its congregations and others cannot alter the fact that the fundraising was on behalf of the Church. And, as has already been mentioned, the Judge seems to have overlooked the fact that the Church was the intended borrower from the bank in 2009, albeit with guarantees from the first respondent and other locals. The mortgage document was not made available to us but, given that it was registered against the lease, the name given for the borrower must be taken to have been Feohi’anga Tokaikolo ‘Ia Kalaisi, a misnaming of the Church. This shows that the bank required a personal covenant to pay from the Church plus security over its leasehold interest in the land. The bank would not have required a mortgage to be given by a borrower unless this were so. The security would likely have proved ineffective to achieve this object because of the invalidity of the lease, coupled with the misnaming of the Church, but that does not detract from the point that the Church was prepared to make itself liable for the borrowing, whatever it may earlier have said when Westpac was approached.
[37] The first to fourth respondents have endeavoured to argue that they were not at material times members of Tokaikolo but of a different organisation, evidently one that was never incorporated, to which, they say, donations for the buildings were directed. This is an impossible argument given the history of the lease application and the fact that, as already mentioned, each of the first three respondents continued to hold office in the Church or its Kolomotu’a parish until 2013. Dr. Tu’i’onetoa disputes this but he expressly pleaded in his action for wrongful dismissal against the Church in 2014 that he was a member of the Church when dismissed in 2013.
[38] The first to fourth respondents further relied upon non-compliance by the Church with its Constitution. They pointed out that, although Article XI section 1(a) of the Constitution stipulates that all properties built, purchased, acquired or leased in the name of the Church shall be the property of the Church, and Article XI Section 2(a) that any land that is leased, gifted or acquired by the Church shall likewise be property of the Church, the subject properties were not recorded as being its assets and, furthermore, the building proposals were never submitted to the Church’s Construction Committee as required by Section 1(h) nor channelled through the Church Office to the Lands Ministry, as required by Section 2(e). The last proposition is debatable on the evidence, as Rev. Sione Maile as Secretary-General wrote to the Ministry concerning the proposed buildings, but even if there were all these procedural omissions, the lease was in the process of being acquired in the name of the Church and the fundraising for the buildings was done in its name. There is no credible evidence to the contrary. Accordingly, they are under Section 1(a) and Section 2(a) property of the Church. The failure to follow proper process cannot affect that or cast any real doubt about the intentions of the Church or its donors. If confirmation of this is needed, there is also the evidence of the opening ceremony (dedication) conducted by Rev. Saulala which the booklet prepared by the first respondent describes as for the Tokaikolo ‘Ia Kalaisi Church of Kolomotu’a, ie. the Tokaikolo Church for the parish of Kolomotu’a.
[39] The first defence fails.
Second defence - alleged departure from doctrine
[40] The second defence advanced by the respondents in the Supreme Court, and rather less strongly in this Court, was that the manner in which Dr. Saulala has led the Church, and his teaching and the practices which he introduced, were fundamentally at odds with the teachings and practices of Rev. Senituli Koloi. It is alleged that these doctrinal departures mean that Tokaikolo no longer adheres to the original tenets and principles of the people who joined Rev. Koloi in breaking away from the Free Wesleyan Church in 1978. Therefore, the argument runs, Tokaikolo is no longer the body to which funds and labour were donated for the construction of the buildings at Kolomotu’a and it follows that, because Mo’uifo’ou ‘Ia Kalaisi Fellowship does adhere to those principles, it is entitled to the properties in the place of Tokaikolo. This defence is said to be supported by cases in which church assets were held on trust and when a split in the congregation occurred the courts awarded the assets to the group that was seen as adhering to the original principles of the church: see General Assembly of the Free Church of Scotland v Overtoun [1904] UKLawRpAC 50; [1904] AC 515 and in Tonga, Free Church of Tonga (and the Trustee thereof) v Constitutional Free Church of Tonga [1992] Tonga LR 13.
[41] It is notable that nothing of this kind seems to have been raised with Rev. Saulala or alleged against him in 2013 when the split in Tokaikolo occurred and the defendants left. Dr. Tu’i’onetoa expressed concerns, but these were about financial mismanagement (about which he may well have had good cause for complaint) and other matters of alleged maladministration. The doctrinal objections seem to have emerged only later. However this may be, there are some insuperable problems in the way of the defence.
[42] It is said that Dr. Saulala changed the way in which decision–making was conducted by the original Fellowship and adopted an authoritarian approach and entrenched himself in control of the Church; that he organised or allowed functions and celebrations that would have been anathema to Rev. Koloi, including making obeisance to nobles and members of the Royal Family; and that he changed the Fellowship into a Church of which he became President effectively for life and caused the Church to adopt a constitution which confirmed these changes to the original principles of the Fellowship. The Church thereby became fundamentally different from the Fellowship. And then it did not operate in accordance with the Constitution and there was gross financial mismanagement.
[43] We are prepared to proceed on the assumption that, at least from the point of view of the respondents and their adherents, these matters may reasonably have given rise to concerns. But it cannot be assumed that their concerns were shared by those who donated money and labour for the organisation and construction of the land and buildings at Kolomotu’a. It must be remembered that appeals for funds – made by the Church – came after the changes in practice had occurred and must have been well known to Church members. The Fellowship became the Church in 1994 and Dr. Saulala became its President in that year. The celebrations of which the respondents say they disapprove were occurring from at least the 1990s onwards. The Constitution was under consideration early in the 2000s (with the Dr. Tu’i’onetoa and Rev. Maile participating on the Constitutional Committee) and it was adopted and registered in 2004 with a revised version in 2007.
[44] It cannot seriously be suggested that members of the Church who generously contributed money and labour between 2007 and 2009 were unaware of the changes – in other words, were unaware of the then current tenets and principles of the Church. They must have appreciated that it was the Church with its Constitution – not the original (and defunct) Fellowship - to which they were donating for the purpose of enabling it to carry out its project in its parish of Kolomotu’a. Donors must be taken to have accepted the Doctrines and Beliefs of the Church and the Formulation of the Church as now found in Articles II and III of the 2007 Constitution. There is likewise nothing to suggest that those who earlier, in 2002 – 2003, donated money for the acquisition of the land were ignorant of the then current beliefs and practices of the Church.
[45] If, as we conclude, all the funds were raised by the Church, for the particular purpose of enabling it to construct the Kolomotu’a buildings, from people who must be taken to have been aware of its then current doctrines and practices, there is no basis for the respondents’ assertions that it is they who represent the donee, rather than the appellant.
[46] However, there is one further matter which Scott J rightly regarded as “the only doctrinal dispute between the parties”. It seems that in more recent times, as recently as 2013, Dr. Saulala has preached a doctrine of household salvation. That is said by the respondents to be in conflict with the Doctrines and Beliefs in the Constitution and with the beliefs of Rev. Koloi. Scott J was obviously reluctant to engage with such a strictly theological issue and, while expressing a view, did not try to resolve the issue, although he made the very fair point that aims and practices of institutions like churches are not static and tend to evolve over time.
[47] In this Court, Mr. Edwards drew attention to the fact that Dr. Saulala actually had not been cross-examined on the doctrinal issue and had therefore not had the opportunity of explaining it and reconciling household salvation with the Doctrines and Beliefs of the Church. What he has been reported as saying may have been misunderstood. There may in fact be no fundamental departure from the Doctrines and Beliefs
[48] It would, we consider, be quite wrong to decide the case on the basis of our own perception of this issue when Dr. Saulala’s supposed “heresy” was never put to him in cross-examination. He was merely asked to confirm that Rev. Koloi never preached such a doctrine. He was not asked, for instance, about whether it was compatible with the Doctrines and Beliefs. We are quite unable to say whether there has been a fundamental departure and, because of a lack of evidence from the respondents, especially Rev. Maile, we cannot even be sure that those who left the Church did so because of what Dr. Saulala is said to have been preaching. We should add that the point was understandably not pressed by Mr. Niu SC, for the respondents, in his oral submissions.
[49] The second defence fails.
Remedy
[50] The appellant Church is entitled to an order requiring the first to fourth respondents to give it immediate possession of the properties. It has established its ownership of the church at Kolomotu’a and associated buildings which are being unlawfully occupied by the fourth respondent. As members of that unincorporated association, the first to third respondents must answer for it.
[51] The position in respect of the land is the same. The Church does not yet have a lease, but it was in possession prior to being dispossessed by the first to fourth respondents. It had a possessory title. As the Privy Council said in Perry v Clissold [1906] UKLawRpAC 53; [1907] AC 73 at 79:
It cannot be disputed that a person in possession of land in the assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world but the rightful owner.
The position is summarised in Todd (ed) The Law of Torts in New Zealand, 7 ed (2016) at 9.2.04:
It is not necessary for the plaintiff to prove that his or her possession is lawful. It is no defence for a defendant to prove that some third party has a better right to possession than the plaintiff, unless the defendant entered with the third party’s permission. Ius tertii (right of a third party) provides no defence to trespass.
[52] So the fact that the Church does not have its lease provides no impediment to an order for possession in favour of the Church.
[53] Lease 7739 is unlawful and will have to be removed from the register. There would appear to be no reason why a deed of grant of lease should not immediately be issued to the Church by the Minister of Lands in accordance with Cabinet’s decision on 5 September 2007.
[54] As the Church did not bring its proceeding against the Minister, who is before the Court only as a Third Party, we make no orders against him. The Minister did however seek a declaration that lease 7739 is valid and has failed to establish that.
Orders
[55] Accordingly, the orders of the Court are:
1. The appeal is allowed.
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Handley J
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Blanchard J
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Hansen J
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