Minister of Lands v Kaufusi [2025] TOCA 21; AC 4 of 2025 (20 November 2025)

IN THE COURT OF APPEAL IN TONGA AC 4 of 2025
NUKU’ALOFA REGISTRY [LA 10 of 2022]
ON APPEAL FROM THE LAND COURT OF TONGA

BETWEEN MINISTER OF LANDS

Appellant

AND KIVA KAUFUSI

First Respondent

AND ANDREW CLARKE

Second Respondent

Hearing: 13 November 2025

Court: White, Harrison & Dalton JJ

Appearances: Linda Folaumoetu’i, Attorney General and Mele Aleamotu’a for the Appellant

Sunia Fili for the First Respondent

No appearance for the Second Respondent

Judgment: 20 November 2025

JUDGMENT OF THE COURT

Introduction

[1] This appeal concerns the ownership of a tiny piece of land, a total of two perches. The question is whether this area was mistakenly included in a deed of lease granted by the Minister of Lands to a leaseholder, the second respondent, Andrew Clarke, when it should have been included within the grant of an area of land held by the adjoining owner, the first respondent, Kiva Kaufusi.
[2] Acting Lord Chief Justice Tupou, sitting in the Land Court with an assessor, found that the Minister’s decision to grant the lease was mistaken. That was because the area of two perches was erroneously included in Mr Clarke’s grant. The Court made various consequential orders, effectively ordering the Minister to reduce by two perches the area included in Mr Clarke’s lease and correspondingly increase the size of Mr Kaufusi’s grant by the same two perches.
[3] Mr Clarke did not take any steps to defend Mr Kaufusi’s claim in the Land Court. We accept that it was necessary for the Minister to put before the Land Court all the Ministry’s evidence about its processing of Mr Kaufusi’s application. However, it was not satisfactorily explained to us why the Minister assumed the role of contradictor at the hearing rather than adopting the orthodox status of abiding the Land Court’s decision or why he elected to pursue the partisan role of appealing against the Court’s decision.

Background

[4] Mr Kaufusi, is the registered holder of a town allotment, Lot 86, at ‘Utungake, Vava’u, within Lord Tuita’s estate. The land comprised one rood when a deed of grant was registered in his favour on 1 January 1998. The adjacent town allotment known as Lot 87 then comprised an area of one rood 0.47 perches and remained within Lord Tuita’s estate.
[5] The Land Court accepted Mr Kaufusi’s evidence in finding that these steps then occurred in chronological order:

• [a] On 1 September 2003 Lord Tuita signed an application by Mr Kaufusi to have a small area of 14 perches from Lot 87 added to part of Lot 86 ( the first or original application). The area was shown on an attached sketch map. The Ministry accepted that Mr Kaufusi was assisted by its staff at Vava’u when later applying for registration of the amending deed of grant.
• [b] On 18 April 2006, a Ministry employee prepared what is known as a savingram for Mr Kaufusi’s application. Attached to it was a map which identified the area required from Lot 87 for inclusion in Mr Kaufusi’s extension. The Court noted that the area is marked by a straight line matching the width of the existing allotments on both sides, drawn parallel right up to the end of the boundary of Lot 87 facing Lot 86. Both the savingram and the map described the subject area as comprising 14 perches
• [c] At a later stage the Ministry informed Mr Kaufusi that his request to register an extension could not proceed because a mortgage was registered against his allotment. The Westpac Bank held his deed of grant as security. Mr Kaufusi waited until he had discharged the mortgage in 2012 before proceeding with his first application. The Ministry requested him to return his original deed of grant with the application for processing.
• [d] On 11 May 2013 the Ministry informed Mr Kaufusi that the area intended for his extension was actually 18 perches. Its staff apologised to Mr Kaufusi for its error, and prepared a fresh application for Mr Kaufusi to send to Lord Tuita for approval (the second application). The Lord’s letter of consent attached a sketch map which showed the exact same area and shape as the sketch map attached to the original application for 14 perches. But on this occasion the area was marked as comprising 18 perches.
• [e] In January 2014 Mr Kaufusi visited the Ministry’s office in Vava’u to check on the progress of the second application. He was then advised by a Ministry official, Mr Paula Lo’amanu Moa, that the correct area of the land intended for his extended grant was not 18 perches but in fact was 20.2 perches. Again the Ministry produced a sketch map showing the same area indicated in the original application. Only this time the map was marked with a notation of 20.2 perches.
• [f] Mr Lo’amanu Moa was most cooperative. He apologised to Mr Kaufusi on the Ministry’s behalf. He gave him two options. One was to proceed with the second application, the then current application for the 18 perches extension. The alternative was to lodge yet another application, this time for 20.2 perches. Mr Kaufusi chose the latter. He completed this new application (the third application) with assistance from Ms Haitelenisia Penitani. She is a section draftswoman who had been employed by the Ministry in its Nuku’alofa office for over 24 years. Mr Kaufusi then forwarded the third application to Lord Tuita with another apology for the repeated mistakes. Lord Tuita signed the third application.
• [g] On 6 May 2014 Mr Kaufusi faxed the third application to Ms Penitani. He later called her. She confirmed receipt of this application and assured him that the Ministry would process it.
• [h] In May 2015 Mr Clarke filed an application with the Ministry to register a lease of 22.47 perches from Lot 87. Lord Tuita had signed this application, exactly a year after he signed Mr Kaufusi’s third application for 20.2 perches of the same land.
• [i] On 28 August 2015 Cabinet approved Mr Clarke’s lease, and on 7 September 2015 the Minister directed a survey of Mr Clarke’s lease for an area of 22.47 perches forming Lot 87A on Plan 4747B. The lease was subsequently registered.
• [j] In October 2015 Ms Penitani contacted Mr Kaufusi to advise that his amended deed of grant was ready for collection upon payment of a fee. When collecting the deed in November 2015 Mr Kaufusi immediately noticed the extension was not for the 20.2 perches for which he had applied, but was described as being for 18.2 perches. Mr Kaufusi phoned Ms Penitani to advise of the mistake. At Ms Penitani’s request, he delivered the deed back to her personally at the Ministry’s office in Nuku’alofa before returning to New Zealand at the end of November 2015 (where he works as a vehicle inspector). Despite Ms Penitani’s assurance that the Ministry would process the correction, Mr Kaufusi has never heard back from her or the Ministry

[6] Mr Kaufusi learned that the Ministry had never processed his third application by misfortune. While Mr Kaufusi was holidaying in Vava’u in 2018, Mr Clarke lodged a complaint with the police. Mr Clarke apparently alleged that Mr Kaufusi and his family had trespassed on his land. The Police took Mr Kaufusi into custody for a short time. It was only then that Mr Kaufusi discovered that the new lease granted to Mr Clarke included the extra two perches from Lot 87 for which he had earlier applied.
[7] The Minister disputed Mr Kaufusi’s account of these events. The Minister did not call Mr Lo’amanu Moa as a witness. He relied principally on Ms Penitani’s evidence. Ms Penitani denied that she assisted Mr Kaufusi with his applications other than following up his second application for the 18 additional perches. Ms Penitani said that she gave Mr Kaufusi the deed in a manila folder at the Ministry’s Nuku’alofa office after this second application was processed. She said that they had then looked at the document together. She said she had not seen him since. She expressly denied that Mr Kaufusi had later delivered the deed back to her for correction.

Land Court Judgment

[8] The Land Court’s judgment was based on firm credibility findings in Mr Kaufusi’s favour. The Court preferred his evidence to that of Ms Penitani wherever they differed. It found that his evidence was consistent and unshaken during cross examination. The Court rejected Ms Penitani's account of a limited involvement with Mr Kaufusi’s applications.
[9] In this respect, the Court specifically rejected Ms Penitani's account of returning the deed to Mr Kaufusi when they met at the Ministry’s Nuku’alofa office in November 2015. If that account were true, the Court found, the Ministry would only have one original of the deed in its possession. Instead, another Ministry witness. Mr Warwick Vea, a senior land registration officer, admitted that the Ministry possessed the two original deeds at the time of trial. The Ministry’s process was that once registration of an allotment is completed, one original deed is issued to the allotment holder and the other is kept in the office. The Court treated this evidence as corroborating Mr Kaufusi’s recollection of delivering the deed of grant back to Ms Penitani when they met in November 2015.
[10] Moreover, Ms Penitani was shown the deed which she claimed to have issued to Mr Kaufusi. She was asked in evidence at trial whether she noticed that the area noted on the grant was 18.2 perches, not 18 perches. She answered that she had only noticed this difference for the first time. The Court was satisfied that had Ms Penitani looked at the deed together with Mr Kaufusi at the Ministry’s office in November 2015, as she alleged, her attention would have been drawn to the error of 18.2 perches noticed by Mr Kaufusi.
[11] The Court also gave weight to the fact that in February 2018 Mr Kaufusi wrote to the Minister following Mr Clarke’s complaint of trespass. He inquired about the status of his third application. The Ministry’s evidence was that it required the original of the application for 20.2 perches to be able to deal with the letter. Mr Kaufusi produced a document with a sketch map showing the same area drawn on it as on the three previous sketch maps which he had produced with his applications. Mr Kaufusi said that the document and the sketches were given to him by the Ministry staff, showing the correction that should have been made and a sketch map indicating the area taken from his allotment.
[12] The Court was satisfied that the correct area which Lord Tuita intended to grant Mr Kaufusi was all that land shown on the sketch maps and running in parallel and equal in width to Lot 86, in a straight line to the end of Lot 87 and consisting of an area of 20.2 perches. The Court was satisfied also that Mr Kaufusi did not suggest that area on his own account. Instead he was furnished with the necessary information by Ministry staff. He did everything he was required to do with the Ministry’s assistance to have the consented area described as 20.2 perches added to Lot 86. The Court rejected the Ministry’s defence that Mr Kaufusi failed to lodge his third application for the additional area.
[13] The Court applied the settled principle that registration is final unless it came about as result of fraud, error of law, mistake , or breach of the principles of natural justice or of a promise made by the Minister or the estate holder.^[1] The Court was satisfied that the registration of the lease of Lot 87A to Mr Clarke was the result of the Ministry’s mistake in including within the leased area the additional two perches which was the subject of Mr Kaufusi’s third application. In particular, the Court found that the decision to register Mr Clarke’s grant including the disputed two perches was mistaken in that:

• [a] The decision was made in ignorance of Mr Kaufusi’s application which was originally filed on or around 18 April 2006;
• [b] The Ministry staff failed to consider the sketch maps on Mr Kaufusi's applications which had been provided by Ministry staff and which ought to have alerted them to the fact that Mr Clarke’s lease for Lot 87A was extending onto the area intended for Mr Kaufusi’s extension;
• [c] The Minister did not give Mr Kaufusi an opportunity to be heard on the reasons why he should be given priority on the allocation of the disputed two perches; and
• [d] The Minister was unaware or failed to take account of Mr Kaufusi’s application for 20.2 perches from Lot 87.

[14] The Court entered judgment for Mr Kaufusi and ordered the Minister to give effect to the court’s finding by:

• [a] cancelling the deed of granted registered in Mr Kaufusi’s name;
• [b] cancelling Lease No. 8831 registered in Mr Clarke’s name;
• [c] issuing Mr Kaufusi a fresh deed of grant for his town allotment, Lot 86, to include the disputed two perches and thereby increasing the total area of his land to one rood 20.2 perches;
• [d] the Minister then reissuing Mr Clarke’s deed of lease with the previous total area of 22.47 reduced by two perches.

[15] The Court also ordered the Minister to pay Mr Kaufusi’s costs.

Appeal

[16] The Minister’s appeal does not question the principle of law applied by the Land Court. Instead on his behalf the Attorney- General challenges each of the four factual grounds for the Court’s finding that the Minister was mistaken ^[2]
[17] Before addressing each of those grounds we record briefly that the Minister is empowered to grant allotments to Tonga citizens ^[3] and to grant leases with Cabinet’s consent ^[4]. The Minister’s duty is to define the boundaries of every landholder^[5]and to have a survey made of the subject land and file a copy in the Ministry’s office at Nuku’alofa^[6]. The holder of an allotment is to register the holding in the office in which the allotment is situated whereupon the Minister shall deliver the deed of grant to the holder in the form set out in Schedule V of the Land Act. That statutory form provides that the allotment is to be described as for “...all that parcel of land..” at a defined location and with a defined area.
[18] The Minister challenges the first ground of the Land Court’s finding that his decision to grant Mr Clarke’s lease was made in ignorance of Mr Kaufusi’s first application which was originally filed in April 2006. The Attorney General emphasises that that application, to which the Minister consented on 20 June 2006, was lodged together with a sketch map which only sought to add 14 perches to Lot 86. Mr Kaufusi’s application did not include the disputed additional two perches. The Minister submits that he was not then required to foresee that Mr Kaufusi would later amend his application.
[19] This submission misconstrues the Court’s reference to Mr Kaufusi’s first 2006 application. The Court was simply reciting the date on which the original application was lodged. It was not limiting the Minister’s obligation by reference to the state of his knowledge at that time. Self-evidently that knowledge evolved with each successive application which Mr Kaufusi lodged on the Ministry’s recommendations. But critically the Ministry was aware from its receipt of the third application on 6 May 2014 that Lord Tuita had consented to transferring to Mr Kaufusi the area shown on all the sketch maps including the disputed two perches. That area never changed. It was only the Ministry’s description of its size that changed.

[19] The Minister submits that the Land Court erred in the second ground for its mistake finding based on his staff’s failure to consider the sketch maps attached to Mr Kaufusi’s applications when granting Mr Clarke’s lease in 2015. The Minister’s submission focusses on the evolving descriptions of the area to be transferred to Mr Kaufusi. However, this submission ignores the Court’s finding that when granting Mr Clarke’s lease in 2015 the Minister knew of the relevant changes to the description of the same area of land made in the second and third applications. Moreover, the Court found, those changes were initiated by the Ministry staff.

[20] The Minister challenges the Court’s third ground for its mistake finding that he did not give Mr Kaufusi an opportunity to be heard on Mr Clarke’s application and on the reasons he should be given priority. We agree that the Minister was under no obligation to hear Mr Kaufusi. There was no extant dispute which might engage this principle of natural justice. However, this ground was not essential to the Court’s decision.

[21] The Minister submits that the Court ‘s fourth ground was in error for the reason that he was unaware of Mr Kaufusi’s second and third applications when granting Mr Clarke’s lease. This submission, which is essentially a variation of the first and second challenges, must fail in light of the Court’s factual finding that Mr Kaufusi had lodged both the second and third consented applications with the Ministry before the Minister granted Mr Clarke’s lease.

[22] The Minister challenges the Land Court’s decision on two other grounds. First, he submits that the Court’s factual findings ^[7]rely on inadmissible hearsay evidence from Mr Lo’amanu Moa who was not called as a witness at trial^[8]. However, evidence of Mr Lo’amanu Moa’s statements to Mr Kaufusi was plainly admissible within the first and fourth recognised statutory exceptions^[9] Mr Lo’amanu Moa’s statements form part of the central fact or transaction that was being investigated by the Court - that is, whether the Minister mistakenly registered the area of Mr Clarke’s lease. They were also made to the prejudice of the party against whom they was sought to be proved.

[23] It was for the Court to determine what weight it gave to the statements. In any event, Mr Lo’amanu Moa’s statements simply fell within the narrative and the Court’s determinative acceptance of Mr Kaufusi’s evidence that he lodged the second and third applications with the Ministry would be unaffected even if Mr Lo’amanu Moa’s evidence was excluded.

[24] Second, the Minister submits that the Court erred in its treatment of Mr Vea’s evidence^[10]. As noted, Mr Vea was a senior and highly experienced Ministry employee. He was not involved in any of Mr Kaufusi’s dealings with Ministry staff. His evidence was directed towards a review of the Ministry’s records and the absence of Mr Kaufusi’s third application.

[25] However, Mr Vea’s evidence was of no assistance in determining the whereabouts of the third application which the Court found Mr Kaufusi delivered to the Ministry in November 2015. Nor did his evidence rebut the necessary inference from that finding that the Ministry had subsequently lost or misplaced the application. Moreover, as the Court found, his admission in cross examination that he located two copies of Mr Kaufusi’s deed within the Ministry’s files served to corroborate Mr Kaufusi’s account.

Conclusion

[26] In conclusion, the Minister’s appeal must fail because he has not shown any error in the Land Court’s factual findings that when registering Mr Clarke’s lease in 2015 his staff knew or ought to have known that Lord Tuita had at least a year earlier approved Mr Kaufusi’s third application including the two contentious perches. The Minister could only have succeeded by establishing that the Court erred in accepting Mr Kaufusi’s evidence. By 6 May 2014, on his account, he had lodged with the Ministry the third application consented by Lord Tuita. The third application correctly described the area of land to be transferred as 20.2 perches. The Minister’s mistake was to register Mr Clarke’s lease with the area of land including two of those 20.2 perches when he was on notice of Mr Kaufusi’s third consented application for a grant of the same area.

Result

[27] The Minister’s appeal is dismissed.

[28] The Minister is ordered to pay costs to Mr Kaufusi in an amount to be fixed by the Registrar together with reasonable disbursements.

White J

Harrison J

Dalton J

---

^[1] At para 43, applying Skeen v Sovaleni [ 2005] TLR 298, a decision of Ford J sitting in the Land Court..
^[2] At para [13] above
^[3] Section 19 (2) of the Land Act
^[4] Section 19 (3)
^[5] Section 23
^[6] Section 25
^[7] At para [5] ( e ) & (f) above.
^[8] Section 88 of the Evidence Act
^[9] Section 89 (a) & (d)
^[10] At para [9] above