Vuna v 'Ahio [1999] TOLC 2; L 0949 1997 (12 November 1999)

IN THE LAND COURT OF TONGA
NUKU'ALOFA REGISTRY

L. No 949/97
BETWEEN

1. SIONE 'ALATINI VUNA
2. SIONE FINE VUNA

Plaintiffs
-V-

1. TITALI 'AHIO
2. MINISTER OF LANDS

Defendants

BEFORE HON JUSTICE FINNIGAN
AND HON LASIKE, ASSESSOR

Counsel:
Mr Appleby for the Plaintiffs
Mr Tu'utafaiva for the First Defendant
Mr Havea for the Second Defendant

Dates of Hearing: 27 and 28 September 1999
Date of Judgment: 12 November, 1999

JUDGMENT OF FINNIGAN, J

This is a claim by two members of the Vuna family. The first defendant was for 5 years the leasehold occupier of one of the family's allotments. The claim is against both defendants for damages for 5 years' wrongful exclusion of the first plaintiff who claims to be its true holder, and damages for plants and trees which are said to have been destroyed by the first defendant.

The first defendant throughout has taken the stance that for the term of the lease, 5 years until 24 December 1998, he was a bone fide holder of good leasehold title, granted to him by the first plaintiff's brother. Both defendants deny liability.

The Minister is involved as second defendant, because his predecessor took certain steps in respect of registration. Those steps are challenged as being made by mistake. As summarised by counsel for the plaintiffs, the case against the Minister is that he unlawfully took the plaintiffs' land and gave it to another.

All of the relevant events on which the plaintiffs base their action took place within their own family and between their family and the Minister.

THE RELEVANT FACTS

The narrative spans 4 generations of the Vuna family, and three allotments. The allotment in issue is the one called Ma'anga'ulua III. The original landholdings were as follows.

First Plaintiff's Great-grandfather - Sione: MA'ANGA'ULUA I

First plaintiff's Grandfather - Huapaongo: HA'APAULALO

First plaintiff's Father (the 2nd plaintiff) - Fine: MA'ANGA'ULUA III

First plaintiff - 'Alatini, and his brother - Sekope

Sione died on 7 August 1966, and Huapaongo filed an heir's affidavit. He took no further action about registering a new title-holder for his father's allotment, Ma'anga'ulua I. Huapaongo himself had held another allotment, Ha'apaulalo, since 1934. In 1991, he took steps to complete the registration. On a day which the Minister's minute book shows as 28 June 1991, Huapaongo went to the then Minister. He said he preferred to live on his own allotment, and arranged with the Minister that his father's allotment Ma'anga'ulua I would pass to his son, the first plaintiffs father Fine. Fine was already living on it. However, Fine had already been the registered title-holder of another allotment, Ma'anga'ulua III, since 1952. Huapaongo arranged with the Minister for this (Fine's) allotment to pass to his second-eldest grandson Sekope. Sekope was Fine's second son, the younger brother of the first plaintiff. The elder grandson 'Alatini, the first plaintiff, he said would have to wait and inherit Ha'apaulalo, the allotment on which he Huapaongo was then living. As it happens, Huapaongo is still living, aged 97, and as it happens, Sekope has died.

A few days later, on 1 July 1991, the Minister gave directions in accordance with Huapaongo's request. He directed that Fine be entered in the register as transferee of Sione's land, Ma'anga'ulua I (page 33 of the register book, Exhibit 31). He directed that Sekope be entered in the register book as transferee of Fine's land, Ma'anga'ulua III (# 12, book of copied documents). I was not told whether a Deed of Grant for Ma'anga'ulua I has been issued to Fine. At this stage it should be noted that there has never been any formal consent by Fine to the disposal of Ma'anga'ulua III, although he clearly could not continue to hold it if he accepted Ma'anga'ulua I (see the Land Act, s 48). So far as I am informed, he himself took no formal steps either to accept Ma'anga'ulua I, or to relinquish his own land Ma'anga'ulua III. He simply accepted his father's wishes.

However, after a while 'Alatini came from America where he was living, and wished to have access to land. He went to his father Fine to see what was his legal position. On or about 23 September 1992, Fine and 'Alatini went to see the Minister. When the Minister learned that 'Alatini was Fine's elder son it seems he was angry with Fine for not objecting to the transfer of his land to Sekope when it should have been inherited by 'Alatini as the older brother. Fine accepted the rebuke, as he had accepted the will of his father Huapaongo.

The Minister then said that 'Alatini would have his father's land. At that time, on 23 September 1992, he recorded and approved the re-arrangement of the allotments in his Minute Book (book of copied documents, # 11). He directed what should be done. He specified that Sione's allotment (Ma'anga'ulua I) be transferred to Fine, and that Fine's allotment (Ma’anga’ulua III) be transferred, not to Sekope, but rightfully, to Fine’s heir ‘Alatini.

The next day, 24 September 1992, 'Alatini and/or his father paid the necessary registration fees. His fee payment was the only formal step that Fine took under the Land Act to apply for Ma'anga'ulua I, or to surrender Ma'anga'ulua III. He has not formally surrendered that allotment, nor has there been any Cabinet approval as required by S 54 of the Act.

On 6 October 1992, after payment of a further fee, the Secretary for Lands and the Minister's clerk issued a document to 'Alatini. It was a printed document of the Ministry of Lands, which had been amended by typewriter to be called a Certificate of Statutory Landholding, (book of copied documents, #16). With that as his authority, 'Alatini entered on the land, Ma'anga'ulua III and added to the trees already planted there by his mother and others a crop of young pineapple plants. He then left these to the care of his brother and sister and his father Fine. From the evidence it seems that they cared for some corn and some maniocs that was there. It seems Fine weeded the pineapple plants, but that very little interest was taken in them.

About a year later, the first defendant was seeking land for squash, and he went to his good friend Sekope. Sekope offered to lease him his land, which was the same piece. Sekope died less than a year later, (on 12 August 1994). There was no evidence to suggest whether or not Sekope was aware that his father and brother had seen the Minister about the land. As it happened, the Minister's office had taken no further steps to register 'Alatini as title-holder after issue of the certificate of statutory landholding. The register book in the Ministry of Lands still recorded Sekope as holder of the title. That is what the first defendant discovered when he took the precaution of attending at the Ministry to verify that Sekope had good title to lease to him. An agreement was then reached between Sekope and the first defendant, and a lease document in the proper form was drawn up. It was executed on 17 November 1993 and approved by the Minister the same day. The first defendant was to occupy the land from 24 December 1993 until 24 December 1998. Not only was the first defendant's prudence rewarded by verification of Sekope's title, but also the Minister approved the lease.

A little later the first defendant went to see the register book again, and found that Sekope's name had been crossed out. The name of 'Alatini had been entered as title-holder. The first defendant went to the Minister and told him of his disappointment. The Minister moved to help the first defendant. On 6 April 1994 he directed that the details of the lease be noted in the register book for Ma'anga'ulua III and the entry was noted accordingly. He then wrote that same day to both Sekope and 'Alatini, sending a copy of his letter to the first defendant. In the letter he informed that he had approved and signed the lease by Sekope to the first defendant. He said that the lease would run until 24 December 1998. He cancelled from the date of the letter his previous approval of the transfer of the land from Sione to 'Alatini, stating that the land would return to Sekope until the lease expired on 24 December 1998, after which further orders would be made to transfer the land to 'Alatini.

To this day the Deed of Grant (#7 in the book of copied documents) records that the titleholder of Ma'anga'ulua III is neither Sekope nor 'Alatini. It is Fine. There has been no subsequent Deed issued. The evidence of the plaintiffs about the Deed was given by Fine and by 'Alatini. Neither of them seemed to attach much importance to it until asked. They both said, and from the manner of their evidence I accept, that Fine took it when they went to the Minister. Fine said the Minister examined the original of it. The Minister told them that the allotment was 'Alatini's and sent them to see the Secretary to pay the fees. Both Fine and 'Alatini said that Fine gave the Deed to 'Alatini when they met the Secretary. 'Alatini was clear that it was needed to identify the allotment they were discussing, and to prove that Fine had title to it. He said they gave it to the Secretary.

The Registrar of Lands who gave evidence was familiar with these transactions, and had been involved. His evidence was entirely clear about the matter. He said that the application by Fine to have the land transferred to 'Alatini was complete, but the work that should have been done thereafter is not. I presume he meant preparation of a surrender for cabinet approval, with advertising then application (S54), and subsequent preparation of a new Deed. He said that the transfer to 'Alatini took place in the register book only, and that the Deed of Grant was never produced by the titleholder. The Registrar said that the Ministry of Lands can produce a new Deed of Grant only when the original held by the previous title-holder is produced. If that has been lost, then in its place there must be an affidavit of loss sworn in the Ministry office. From the evidence I find that the Deed has in fact been lost, but from the evidence must find that it was lost in the Ministry's office.

After 'Alatini received the Minister's letter dated 6 April 1994, a dispute arose. He wrote to the first defendant, asking him to vacate the land. The first defendant replied, sending a copy of the Minister's 6 April 1994 letter and asking 'Alatini to wait till the lease expired. Both 'Alatini and Fine protested. 'Alatini wrote to the Minister, asking him to correct the situation, which had caused him monetary loss while the first defendant had profited. Fine went to the allotment and assaulted the first defendant. 'Alatini wrote again to the first defendant asking him to vacate. He and his father commenced these proceedings. The lease has now expired. The plaintiffs are 'Alatini and his father, they seek damages from the first defendant and the Minister for trees and plants which they say were destroyed during the tenure of the first defendant, and damages for loss of use.

To complete the narrative, the land was in a separate dispute in 1995 and 1996. In 1995 the widow of Sekope brought an action, No L251/95. She claimed a widow's life estate as successor of Sekope. However, the widow remarried in 1996. The action was effectively abandoned partway through the trial when this was revealed, and it was dismissed for want of prosecution. In the case before me, though estoppel was not pleaded, counsel for the plaintiffs wished me to find an estoppel on the basis of an admission said to have been made in that earlier case on behalf of the Minister. The admission is said to have been that the name of 'Alatini was entered on the register book. There is nothing I can find in the file of that action which conveys that admission, but in any event I should be reluctant to extrapolate from undecided proceedings. Even if I were, an admission of that fact, since it is proved as a fact, cannot detract from the Minister's position in the present proceedings. What matters is its legal effect.

THE ISSUE AND THE ESSENTIAL FACTS

The real issue is who was the lawful owner of the allotment Ma'anga'ulua III at the time when Sekope leased it to the first defendant? The plaintiffs' claim as pleaded is that Fine had good title, to the exclusion of Sekope. However, as argued at trial their claim is that the titleholder was 'Alatini, and his certificate of title was the certificate of statutory landholding issued on 6 October 1992.

It is necessary, I think, to isolate that issue, because it seems to me that remarks might otherwise be diverted to aspects of this matter that are indeed remarkable but which are not essential to the decision. For that reason, I make the following findings, as the strictly pertinent facts.

Huapaongo inherited Ma'anga'ulua I when his father died in 1966. It was a tax allotment, it seems. He did not want it and elected not to take it. He swore the heir's affidavit, but otherwise took no legal steps about that. He saw the Minister in 1991 in order to get the legal steps taken. The Minister agreed that his son Fine, the grandson of the deceased, should succeed to Ma'anga'ulua I as heir. That person, Fine, however already held a tax allotment, Ma'anga'ulua III. Without consulting Fine, perhaps presuming his consent, the Minister purported to divest Fine of this allotment as if he had surrendered it. Without application by Sekope, Fine's second son, perhaps presuming such application, the Minister granted Fine's allotment to Sekope. When the Minister was later made aware of the existence of an elder son, 'Alatini, he purported to take Ma'anga'ulua III from Sekope without consulting him, perhaps presuming his agreement, and to grant it to 'Alatini. There had been no surrenders or Cabinet consents or applications as required by S54. The grant to Sekope had been entered in the register book, though no Deed of Grant had issued to Sekope. Relying on the register book, Sekope entered a 5-year lease with a stranger, and the Minister approved that. Soon after this, the grant of this land to 'Alatini was noted in the register book. The stranger (the first defendant) complained to the Minister. The Minister then noted by entry in the register book that the grant to 'Alatini was suspended until Sekope's lease expired. At no time, so far as the evidence reveals, were any of the transactions over Ma'anga'ulua III given Cabinet approval, nor did the Minister issue any Deed of Grant.

THE SUBMISSIONS

The statute governing the matter is the Land Act cap 132 ['the Act']. Counsel for the plaintiffs submits that the then Minister made several mistakes in acting as he did. In his submission, valid steps to remove Fine's allotment from Fine could be taken only by Fine, its titleholder. He relies also on s 54 of the Act, in respect of surrender. He submits that not only did Fine not consent for the purposes of the Act to Huapaongo's plan for the transfer of Fine's allotment to his second son, but also that neither Huapaongo nor Fine surrendered that allotment in the manner required by the Act. Until that occurred, he submits, no further valid steps could be taken. He submits that if, the attendance by Fine on the Minister and his payment of a fee in September 1992 can be held to be a surrender of his allotment for the purposes of the Act, then that surrender could not be hedged about with conditions and the land had to devolve upon the elder son 'Alatini, who had no land and was thus not disqualified by s 48.

He relies on the certificate of statutory landholding to prove that title was validly transferred to 'Alatini. He submits that the authority for that is a judgment of the Court of Appeal, Vailea v Sakalia & Ors, unrep., App No 11 /95, judgment delivered 31 May 1996.

Counsel for both defendants contend that the certificate is not a certificate of title under the Act, and has no force. I find that such a certificate is mentioned in the judgment cited, but only in passing, as part of a statutory and evidentiary train that concluded with "the confirmatory memorandum of grant on the Deed of Grant" (at p 7). I must say that the judgment cited does not seem to me to uphold the proposition that such a certificate is a statutory certificate of title. Neither can I find any provision in the Land Act for a certificate of statutory landholding. If such a certificate does not report what is recorded in the register and in a confirmatory Deed of Grant that has been issued, or will be issued, then it must be an empty document, incorrect and of no effect at all.

On the assumption that the above submissions fail, counsel for the plaintiff then submits that the lease approved by the Minister was not authorised by the Act, and conferred only a right in personam. That right, he submits, died with Sekope and could not enure for the benefit of his estate or his heirs, or for the benefit of the other contracting party. In his submission, any rights that the first defendant may have had came to an end when Sekope died and his tenure of the land after that was without authority. He was made by the death a trespasser. He persisted in his trespass till the end of the lease period and exacerbated the damages.

Counsel for the first defendant submits that Fine has accepted Ma'anga'ulua I, and is registered as titleholder (page 33 of the register book, Exh 31). Fine was thus, he submits, disqualified by s 48 from continuing to hold Ma'anga'ulua III. Thus, in his submission, 'Alatini can make no claim of right by inheritance. Neither has that land however, in his submission, passed to 'Alatini, because 'Alatini has never applied for it under S 54, or been granted it in his own right. In his submission, the plaintiffs have followed none of the proper procedures under Ss 43, 54 and (if it applies, he submits it does not) 122.

He submits that the effect of the register book is only that it shows the intention of the Minister to approve transfer of the allotment to Sekope, then to 'Alatini, then back to Sekope for the duration of the lease. In this he submits that the Minister first is himself bound by the Act, and second has not in any event taken the necessary statutory steps to install 'Alatini as titleholder. His fundamental submission however is that title to an allotment cannot be complete until there has been both an entry in the register book and issue of a Deed of Grant. The authorities that he advanced for that proposition include a 1958 judgment of the Privy Council, Folau Tokotaha v Deputy Minister of Lands & Sani Vea, Tongan Law Reports, Vol II, 1923-1962, 159. I accept that submission. The difficulty for the first defendant in the submission is that the Minister did not install the brother Sekope as titleholder.

About the lease, he submits that approval was open to the Minister, and once approved the document had full force and effect though on its face it was not transferable or assignable. He submits that if the Court finds that registration in the register book by itself (i.e. without registration in a Deed of Grant) bestows an interest, then it follows that Sekope was at all material times the titleholder and the first defendant was the registered leaseholder.

Counsel for the Minister submits that after the Minister approved Huapaongo's request and had the register book noted on 1 July 1991, the register book was the evidence of ownership, unless mistake or fraud be shown. He submits there is no evidence of either, the plaintiffs' claim of mistakes by the Minister being unfounded claims of mistakes of law. He submits that while the Minister is bound by the Act, he still has discretions under s 19(2), In his submission, when the Minister's first decision was registered in the register book on 1 July 1991, and when his partial reversal of that was ordered on 23 September 1992 (and subsequently registered in the register book), and when he again had the register book varied on 6 April 1994, he was acting within his allowable discretion. He was correct in application of principle, i.e. of the Land Act, was not making any mistake of fact and was not being fraudulent or defrauded. Thus, in counsel's submission, the register book was sufficient to give title to Sekope at the time of the lease, and the plaintiffs can have no remedy against the Minister.

The authority relied on by counsel for his submission that the register book is sufficient evidence of title is a 1956 decision, ‘Etoni Ma'asi v 'Akau'ola & The Deputy Minister of Lands, Tongan Law Report Vol II 1923-1962, 107. That case however decided a contest between the register book and an allegation of fraud, and the Court merely preferred the register book to an allegation of fraud that had not been strictly proved. There was no derogation from the principle in Folau Tokotaha (above) that for proof of title both the register book and the Deed of Grant are required.

In respect of consent, counsel for the Minister referred to the 1989 decision of the Privy Council, Vakameilalo v Vakameilalo & Minister of Lands, [1989] Tongan Law Report 98. There it was held that the consent of an heir is not necessary under s 54, and that an heir must lodge his claim to a surrendered allotment within 12 months of the surrender. The Privy Council recommended an amendment to S 54 in order to enshrine the latter principle in the Act. That amendment became statute law in the Land (Amendment) Act 1991, with effect from 4 February 1992.

DECISION

I have considered all of these submissions. I have considered the judgments cited to me, and other recent judgments about succession and about certainty of title under the Act. The first step to resolution of the plaintiffs' claim is the evidence of title. I have no doubt that the final and conclusive evidence of title to an allotment under the Act is registration under the Act. Registration is not complete until the grant is registered both in the register book, and in a Deed of Grant. The Act and the judgments are clear and there should no longer be doubt in the minds of lawyers about this. There is no room for equity. Registration is final, unless it has come about as the result of an error of Law (i.e. contrary to the Act), or as a result of a mistake, or is in breach of a promise made by the Minister, or is in breach of natural justice.

That is the effect of Part VII, Division II of the Act, Ss 120 to 123. For registration to take place it is the obligation of the successor to produce to the Minister within one month of becoming entitled, the Deed of Grant of his predecessor, or some other proof if unable to produce the Deed. The former Deed is not cancelled until the new Deed has been issued. It is not the register book that is the register of allotments. The register of allotments is the book of the original Deeds, of each of which the Minister is obliged to issue one signed duplicate. The register book has been judicially noticed for many years now. However, it is not a necessary part of the legal process, only of the administrative. To say that registration is not complete until the grant is registered both in the register book and in a Deed of Grant is merely to acknowledge the fact that the register book is used. Should that book at any time be not available, or in conflict with the register book that is made by binding together the original Deeds of Grant, then it is the latter which is the final and conclusive evidence of title. The Minister's intentions are not relevant, in the absence of a mistake, or a promise, or an error in applying the Act, or some breach of natural justice: see Havea v Tu'i'afitu & Ors [1974-1980] Tongan Law Report 55 and Taufa v Veamatahau & Latu, unrep., L924/97, judgment 17 August 1999.

So I determine the crucial issue by finding that neither Sekope nor 'Alatini have or have had title to Ma'anga'ulua III. The Cabinet has never approved Fine's surrender, so no new Deed can issue. The Minister, whatever his intentions, has never proceeded to register either of them. The Minister never proceeded to sign and deliver to either of them a Deed of Grant as required by s 121. He never had an original prepared for binding into the register book. The only extant Deed of Grant is the original bound Deed of Grant to Fine. Fine's duplicate of that was produced to the Secretary for cancellation, but it seems to have been lost. The issue of a new Deed is necessary under s 123. There is no new Deed. The Minister has never cancelled Fine's title to Ma'anga'ulua III.

I find that the second plaintiff, Fine, is the titleholder of the land. I find that the first plaintiff clearly claims through him. He has the second plaintiff's authority to use the land, and is the lawful and intended heir, to whom the second plaintiff has attempted to transfer it. I therefore hold that the plaintiffs have standing to bring this action, but the legal rights are the second plaintiff's alone.

I turn to the claim that the plaintiffs make for damages. The essence of an award of damages is to provide by action compensation to a plaintiff for damage loss or injury caused in breach of a legal duty. The duty sued on must be a duty in tort or in contract. The plaintiffs' claim is that they have suffered injury in that (a) a pineapple crop planted by the first plaintiff was ploughed in by the first defendant, (b) some trees on the land were cut down during the time of the first defendant's occupancy, (c) they were kept off the land by the first defendant for 5 years, and (d) they were thus deprived of rents and other income.

The claim may be in tort, perhaps in trespass, but the amended statement of claim does not plead any duty to the plaintiffs that they claim has been breached by either defendant.

Putting that aside, the quantification of the claimed losses is not convincing. The original trees allegedly destroyed are self-valued by the plaintiffs with no objective evidence. There is some difference between the plaintiffs about their number and value. The first plaintiff said, without having counted, that there were between 30 and 50 coconut trees cut down. The second plaintiff counted 17, but on a single occasion only. Of tuitui trees, the first plaintiff said there were about 4 cut down, and I understood the second plaintiff to say about 50. If he meant 15, the discrepancy still makes the evidence unreliable. The first plaintiff said one mango tree, the second plaintiff said there were 2 or 3. For breadfruit trees the numbers were 4, and about 7. The second plaintiff added koka trees, which he said died when they were burned, and a tava tree that was burned. There is no evidence at all that the first defendant destroyed any of these. He denied doing so.

For the claimed 300 pineapple plants, there was only the first plaintiff's claim in evidence. They were self-valued by the first plaintiff without any objective support. The evidence of their increasing annual value was no more than subjective estimation, based on a presumed increasing annual production and estimated market values for pineapples in each of the five years. The impression made by the evidence of the first plaintiff about this business venture is that it was not reliable as business information, being rather his catalogue of hopes. As it happened, he left the pineapple crop in the care of the second plaintiff, but the second plaintiff did little or nothing to care for it. The evidence of the first defendant must be taken into account, and he said he saw only cattle and overgrowth on the allotment, being unaware that among the verdure that he was ploughing in there were pineapple plants. My overall impression is that there was little of value in the pineapple crop by the time the first defendant came onto the land. In respect of other income such as rents that were lost, there was some evidence of land lease values, but by itself it did not help that claim.

Putting aside any duty, and proof of loss, I turn briefly to causes. One needs to stand back only a little in order to see the cause of whatever misfortune the plaintiffs have suffered. The crucial element in the plaintiffs' disappointment was the 5 year lease agreement made by Sekope, their son and brother. How did it come about that Sekope was able to do that? The answer in the evidence is that his name was in the register book as titleholder. How did that come about? The answer in the evidence is that Huapaongo arranged it with the Minister. The second plaintiff, Fine the titleholder, said he accepted his father's wishes and allowed it to happen though he did not like it. That was for him to decide and the consequences were for him to accept. It was the act of his father, which he accepted, that caused Sekope's name to appear on the register book. As it happened, the law favoured his wishes, and the land was never registered as Sekope's.

But neither was it registered as 'Alatini's, because the Minister and his staff did not proceed to issue a Deed of Grant. How did that happen? Whatever happened in the Ministry office cannot on the evidence that I heard be clearly stated. However from the evidence of the plaintiffs and the Land Registrar, I accept that Fine delivered his Deed of Grant to the Secretary for Lands. After he had seen the Minister in September 1992 and the Minister had made it clear that the land should go to his heir, and a fee had been paid, he handed over the Deed, and the next step was approval of the surrender by Cabinet, with advertising and then application by 'Alatini under the amended S 54. Thereafter the Law required the issue of a new Deed.

Against that backdrop, the first defendant relied on his lease and the support of the Minister. Has he been in breach of any duty in tort to the plaintiffs? I cannot say he has.

Was the Minister in breach of any duty to the plaintiffs? One might think it his duty to the public, including the plaintiffs, to apply the Act in accordance with its terms as clear on their face and as judicially construed from time to time. Does that constitute a duty of care in tort? Does it constitute a statutory duty? These propositions were not advanced in argument. I did not hear any submission on which I could base a finding that the Minister in the present case is liable in damages to the plaintiffs.

MISFEASANCE IN PUBLIC OFFICE

Perhaps the plaintiffs' claims against the Minister are claims of misfeasance in public office, though not pleaded or argued as such. I pause briefly to mention that area of the law of torts. In England the leading cases may be Bourgoin SA v Ministry of Agriculture [1986] QB 716 and Three Rivers District Council v Bank of England [1996] 3 All ER 558. There are judgments recently also in the High Court of Australia - Northern Territory v Mengel (1995) ALJR 527 - and the Court of Appeal of New Zealand - Garrett v Attorney-General, unrep, 19 March 1996, CA 129/96 and Rawlinson v Rice, unrep, 19 March 1997, CA 246/96.

This tort is not frequently claimed, and is not expansively interpreted by the Courts, but it is available in appropriate cases to litigants seeking remedies for wrongs done by public officials. It seems from the judgments that the ingredients of this tort are that the defendant is the holder of a public office, and has acted in breach of a duty that rested on him (or her), and knew that a duty was being breached or acted with malice, knew that loss to the plaintiff or people like the plaintiff was likely, and caused loss to the plaintiff by the breach of the duty.

None of this formed part of the plaintiffs' case, and I do no more than record here the availability of the remedy.

CONCLUSION

I determine the claim by entering judgment for the defendants. Costs will follow the event; the costs of both defendants are awarded against the plaintiffs. These are to be agreed or taxed.

NUKU'ALOFA Dated: 12 November, 1999

FINNIGAN J
JUDGE