Tukuafu v Tupoumalohi [2002] TOLC 3; L 0005 2001 (12 September 2002)

IN THE LAND COURT OF TONGA
NUKU’ALOFA REGISTRY

NO.L.5/2001

BETWEEN:

VAISILIVA TUKUAFU
Plaintiff

AND:

‘EAKALAFI TUPOUMALOHI
Defendant

BEFORE THE HON. MR JUSTICE FORD.

Assessor: Mr George Blake.
Counsel: Mr Tu'utafaiva for the plaintiff
and Mr Niu for the defendant.

Dates of hearing: 16, 17 May, 19 June, 1 July 2002.
Dates of written submissions: 11 July, 2 and 8 August 2002.
Date of judgment: 12 September 2002.

JUDGMENT

Since December 1980 the plaintiff has been the registered holder of a large, 1621 sq m, town allotment at Lapaha. There is no dwellinghouse on the property at the present time but it is clear from the evidence that the property is well situated. It occupies a corner site with the southern boundary facing the main entrance to Takuilau College and across the road from the eastern boundary is the Lapaha Free Wesleyan Church primary school. Over the years a number, and an impressive variety, of trees, breadfruit and other specimens, have been planted on the allotment.

Soane Kautai told the court that he looks after the property for the plaintiff and one day in December 2000 he noticed the defendant constructing a concrete slab in about the middle of the allotment as the foundation for a house. The defendant claimed that it was his api and at a subsequent meeting he told Soane that, acting on legal advice, he was not prepared to stop the construction of the house he was building for himself.

In April 2000 Soane instructed a solicitor to issue the present proceedings. The writ is dated 24 April 2001. The plaintiff seeks a declaration that the work carried out by the defendant on the plaintiff's town allotment is illegal and he seeks a further order restraining the defendant from entering upon the allotment or carrying out any further work upon it.

A statement of defence was subsequently filed and the matter proceeded to a defended hearing. As is so often the case with land claims, as the facts began to unfold it became apparent that the issues involved were far from straightforward. They had their genesis back in the 1970s and they revolve around various members of the Kautai family. It would appear from the evidence that the Kautai family was well-established in the Lapaha district.

The plaintiff, Vaisiliva, who apparently uses his mother's maiden name, is the son of Matangi and 'Eseta Kautai. He did not give evidence in the case. According to a letter which was produced as an exhibit, he resides in Rambling Lane, Euless, Texas, USA. The court was not given any explanation for his nonappearance.

Although, I accept that there is no rule of law requiring a plaintiff to give evidence in person, in the absence of some good reason for not doing so, the court is entitled to expect that the plaintiff will give evidence in support of his case. After all, it is he who has instigated the litigation which is occupying the time of the court. A plaintiff is required to prove his case on the balance of probabilities and that task is not made any easier if he is not here to answer evidence against his case. That, however, is a risk which the plaintiff in the present case has left himself exposed to.

The main witness for the plaintiff was Soane Kautai. The plaintiff's father, Matangi, was Soane's first cousin. Soane explained to the court how he became involved with the allotment in about 1996 or 1997. He said that the plaintiff had come out from the States to see his father, Matangi, who was ill at the time, and in appreciation for what Soane had done in looking after Matangi and taking him to hospital, the plaintiff decided to give Soane the use of the allotment at Lapaha. Matangi died in 1997. Soane said that by the time of his death, he (Soane) had given him financial assistance totalling some $3000.

Soane told the court that he had studied engineering at a University in India between 1975 and 1981 and he knew that during the 1970s the plaintiff, Vaisiliva, was studying and living in Australia. When Soane returned to Tonga, in August 1981, Vaisiliva had already returned from Australia. Soane thought that he had returned about one year earlier although another witness thought it was longer and that must have been the case because he signed his application for the api in January 1980. Soane was in Tonga for only a few weeks before Vaisiliva departed for America where he has lived ever since.

Much of the case centres around what happened during the period when Vaisiliva returned to Tonga from Australia. Soane said that Vaisiliva married during that time and the evidence shows that in January 1980 he signed the application, and on 10 December 1980 he obtained a deed of grant, in respect of the town allotment which is the subject of this litigation.

Soane said that when he returned from India in 1981 he noticed that there was a house on the allotment. He did not know who built the house and he was unsure who was living in it. In evidence in chief he said that it was occupied by a Mr Antonio Kautai but in cross-examination he believed that it could have been a man called "Pulotu". Either way, it is clear from the evidence that the plaintiff never built or occupied the house and yet there it was, sitting almost in the middle of the allotment registered in his name. How did this situation come about? The evidence for the plaintiff was really silent on the point. To find out the answer, it is necessary now to turn to the case for the defendant.

The defendant, ‘Eakalafi, is 55 years of age. He married into the Kautai family. His wife Emma was a first cousin of Matangi Kautai, the plaintiff's father. Emma's father, Kapeli, and Matangi's father were brothers. 'Eakalafi married Emma in 1970 and they have 10 children. At the time of their marriage, they lived at Haveluliku but in 1975 they moved to live with Emma's family in Lapaha because her father, Kapeli, was ill.

'Eakalafi told the court that he liked living in Lapaha so much that in about 1975 or 76 he changed registration from Haveluliku and became a citizen of Lapaha. He also asked his wife whether they could acquire a piece of land at Lapaha and he spoke to the "old man" about it. The "old man" was his father-in-law, Kapeli. Kapeli arranged for them both to go and see the estate holder, Hon Kalaniuvalu Fotofili. 'Eakalafi said that the estate holder identified the allotment which is the subject of this case as being available and he told him and Kapeli to go and wait for a visit from his land representative, Mailau Vaka'uta. Subsequently, the Land representative came to visit them and after inspecting the allotment he marked out with pegs the area that was set aside for 'Eakalafi.

The land representative, who now resides in Hawaii, swore an affidavit confirming these matters save that his recollection was that Kapeli was the "legal owner of the piece of land" but the land representative said that Kapeli indicated to him that the land was to be given to his daughter Emma and her husband 'Eakalafi and when he conveyed that information to the estate holder, the late Hon. Kalaniuvalu approved. The land representative noted the date that he was instructed in the matter by the estate holder as 16 October 1977.

In his amended statement of defence, the defendant alleges that only 30 perches of the total allotment area of 1 rood 24 perches was set aside for him. In his evidence, however, he said that the area marked out for him by the land representative was 1 rood 30 perches which is more than the total area of the present allotment. The defendant's evidence on this point was all the more peculiar because the 30 perches figure had not been mentioned in the original statement of defence and yet it was specifically referred to in the amended pleading.

In general, I formed a favourable impression of the defendant's credibility and I find the conflict on this point puzzling, particularly given the fact that the trouble had been taken to file an amended statement of defence specifically noting the size of the area allocated to the defendant. No attempt was made to amend the figure in the statement of defence after the defendant had given his evidence and so the 30 perches figure still remains. As it turns out, the resolution of this conflict is not crucial to my ultimate decision.

'Eakalafi told the court that after his allotment had been pegged out by the land representative he and the old man (Kapeli) went to the Lands and Survey Office and he paid $17 being the cost of having the allotment surveyed. ''Eakalafi said that he paid the $17 in cash to a lady at the Survey Office and he received a receipt. He also talked to her about having the allotment registered in his name. 'Eakalafi said that later surveyors came out to the allotment and carried out the survey.

The problem for the defendant is that the Registrar of Lands, Siosifa Tupouto'a, was called as a witness for the plaintiff and he was unable to find any record of a direction from the Minister to have the land surveyed.

'Eakalafi acknowledged that when he went to the Survey Office he did not have with him an application form that had been signed by the estate holder. He explained that he and Kalepi had tried to look for Hon. Kalaniuvalu but they were unable to meet with him because "he was travelling a lot."

It was clear from the defendant's evidence that he was much dependent upon his father-in-law (the old man) and he was happy to leave it to him to finalise the legalities of having the deed of grant finally issued, despite the fact that the old man was obviously suffering from indifferent health at that stage of his life. I do not find this surprising, after all, the defendant was the outsider coming into the Lapaha community and into the Kautai extended family. It was the old man who would have had all the necessary contacts.

Faced with the evidence from Mr Tupouto'a, I can only conclude that the defendant was mistaken when he said that a survey was carried out. I accept, however, his evidence that he paid the $17 survey fee and I also accept his evidence that, having obtained the approval of the estate holder and having had the meeting with the land representative, the defendant genuinely believed that he was lawfully entitled to take possession of the api. That situation was not uncommon. In Vai v 'Uliafu [1989] Tonga LR 56, 59, Webster J. confirmed that it is, "a frequent practice and properly (sic) happens in the most cases. The expectation is that in due course the person on the land will make formal application for registration." Having then paid the survey fee, 'Eakalafi was content to leave it to the old man to take whatever further steps were necessary to have the title issued in his name.

'Eakalafi then explained to the court how he proceeded to clean up the api and arrange for an 18 wheel truck to transport his 30' x 24' house from Haveluliku onto the allotment at Lapaha. He, his wife and the three children they had at that stage, then moved into the house. He also told the court that he built a "Tongan style kitchen" to go with the house and he proceeded to plant a variety of trees on the allotment. All that evidence I accept and had 'Eakalafi and his wife remained living on the allotment I am confident that no problems would have arisen and he would, in due course, have been issued with a deed of grant. That was not to be, however.

'Eakalafi told the court that he had a brother working for Qantas and the brother persuaded him to travel abroad. In 1978 he and his family moved to the United States. He was asked in evidence what then happened to his house and he explained that a man named Pulotu from Niue had been living at his wife's brothers place and the old man, Kelepi, had arranged for Pulotu to move in and look after the allotment during their absence.

The next development in the narrative came with Cyclone Isaac in 1982 which caused severe damage to many parts of Tongatapu. 'Eakalafi said that he was still in the States at the time but he received a call from another of his wife's first cousins, Sitani Kautai, informing him that his house on the allotment at Lapaha had collapsed in the cyclone and Pulotu was still living in the home when the cyclone struck. A later witness explained that the house had not fallen apart but it had collapsed to the ground from the poles which it had been standing upon.

'Eakalafi said that he told Sitani to take the house to his own api and use it and Sitani eventually did that. During that same telephone conversation Sitani also apparently told 'Eakalafi that Matangi, the plaintiff's father, was attempting to get his api. 'Eakalafi told the court that upon hearing this, he said to Sitani that he will come back from America and see the api at his earliest convenience. He explained that he was unable to check the situation out with Kelepi because the old man was ill at the time. Kelepi had all the defendant's papers relating to the property.

The following year, 1983, Kelepi, died. 'Eakalafi said that he suspected that the allotment at that stage had still not been registered in his name but he did not try to contact the Lands Office in Tonga to check. When asked why not, in the course of cross-examination, the witness simply said, "I was in difficulties at the time". He said that he was thinking that someone else might try and apply for the api but he was "engaged on something else" in the States. What the "something else" might have been, was not clarified in evidence.

The "earliest convenience" for 'Eakalafi's return trip to Tonga turned out to be in 1995. 'Eakalafi explained in evidence that on that occasion he came to Tonga primarily in his capacity as fundraiser for the building of a new Catholic Church at Haveluliku. 'Eakalafi said that during that 1995 trip he found out for the first time that after his house had collapsed in the hurricane, a new cyclone relief house had been built on the allotment. He saw the house but he said that he was not in Tonga for very long and he overlooked going to the Lands Office to see if he was yet the registered holder of the allotment.

'Eakalafi said that he returned to Tonga in 1998 for the opening of the new Church and on that occasion he did call at the Lands Office because he wanted to check up on rumours he had heard that the api had been registered in Vaisiliva's name. He learned from the Lands Office that Vaisiliva had, in fact, been the registered holder of the allotment since December 1980. 'Eakalafi said that he heard Soane Kautai was looking after the property for Vaisiliva and so he paid Soane a visit and he told him that he was going to build a house on the api. Soane's response, according to 'Eakalafi, was that he did not want him to do that.

The defendants almost passive resistance to the rumours he had heard about Vaisiliva taking over the allotment were a puzzling feature of this case but when he was pushed in cross-examination for an explanation for not taking any action earlier, he explained that, although he had heard rumours, he did not think that "they" would do such a thing because they were his wife's cousins and in Tongan custom he thought that they would respect female relatives. I accept that this was a genuine explanation which 'Eakalafi was putting forward to the court.

'Eakalafi next came to Tonga either in December 2000, as stated by Soane in evidence, or early in 2001 as he himself said and he then proceeded to build the concrete foundation for his house on the allotment at Lapaha. It was at that point, or shortly thereafter, that Soane called in the police. The defendant was unable to tell the court anything more about what was referred to in evidence as the "cyclone house" but that evidence came from other quarters. The house was no longer on the property when 'Eakalfi returned on that occasion.

Vaea 'Akau'ola was a witness for the defendant. He owns the next door allotment and he has lived on that api at Lapaha since 1976. He was able to confirm how 'Eakalafi had cleared his allotment and moved his house on to the land. He thought that 'Eakalafi and his family had lived in the house for about 2 years before they moved to the States but other evidence indicated that it was for a shorter time period.

Vaea told the court that at the time the cyclone house was built, he was the Town Officer. He said that following Cyclone Isaac the Hurricane Relief Committee required a list of all homes destroyed by the cyclone. He said that ‘Eakalafi’s house which had been destroyed in the cyclone, had already been listed by the “previous Town Officer.” The list showed ‘Eakalafi’s house as being owned by “Matangi,” the plaintiff's father. Other evidence indicated that the "previous Town Officer" who had listed the house, claiming that it belonged to Matangi was none other than Matangi himself.

Vaea said that under the hurricane relief scheme, people who lost their homes were given a new cyclone relief house costing $4000 but the owners only had to pay $700 -- the balance came from the relief fund.

Earlier evidence had been given by Patsy who was the adopted daughter of Matangi and his wife 'Eseta. Patsy was born in 1971. She recalled Pulotu living on the allotment prior to the cyclone and she thought that her father's younger brother, Antonio, lived in the house for a period but I did not find her evidence in relation to that early period reliable. What I did accept, however, was her evidence that in 1985 she lived in the new cyclone relief house with her father Matangi and her younger sister and brother. She recalled the year very clearly because it was the same year that she started attending Takuilau College across the road. She said that her mother moved "back and forth" between the cyclone house and their own api.

It is not clear from the evidence exactly how long Matangi and his family lived in the cyclone house after 1985 but in 1998, by which time Patsy had married, she and her husband removed the cyclone house from the allotment at Lapaha to their own tax allotment where it remains to this day. Patsy was able to confirm that Matangi, who was her adopted father and also the plaintiff's father, was the Town Officer at Lapaha at around the time of the cyclone.

The plaintiff has title to the allotment through a registered deed of grant. Until it is shown to the contrary, the court must presume that the register is correct. In Manu v Tauheluhelu (unreported) L.201/99, judgment dated 14 May 2002, this Court stated:

"The legal position which has been stated many times by this Court, is that once a deed of grant is registered in accordance with the Land Act then it is final unless registration has come about as a result of an error of law (i.e. contrary to the Act), or as result of fraud, mistake, breach of the principles of natural justice or of a promise made by the Minister."

The defendant in the present case challenges the validity of the plaintiff's registration as holder of the allotment and claims that it was unlawful because it was acquired through fraud and it included the area which had already been allocated to the defendant by the estate holder. He also alleges that the grant to the plaintiff was made in breach of the principles of natural justice in that he was never given an opportunity to be heard. Finally, but not least of all, he challenges the allegation that the plaintiff is still a Tongan subject and puts him to strict proof that he has not lost his entitlement to be a landholder in the Kingdom by taking out American citizenship or some other "voluntary and formal act" within the meaning of s.4(1) of the Nationality Act (CAP.59).

The plaintiff strongly denies each of these allegations and, as a preliminary point, alleges that the defendant should not be able to challenge the lawfulness of the plaintiff's grant because his pleading is "a disguised way of trying to get around the time limitation" prescribed in s.170 of the Land Act (CAP. 132).

Section 170 provides that no person can bring an action more than 10 years after the accrual of the cause of action. The plaintiff submits that the cause of action in the present case accrued in December 1980 and the defendant should not now, therefore, be entitled to plead that the plaintiff's claim should be dismissed.

Section 170 bars the bringing of an action, which in my view would include a counter claim, in the Land Court outside the 10 year limitation period but the provision does not preclude, and it does not purport to preclude, any legitimate defence being raised in an action. In 'Ilavalu v Minister of Lands Tonga LR 1974-1980, 29, Hill J. held that the writ issued was out of time and the plaintiff was prohibited by section 148 of the Land Act from bringing any action. Section 148 was the forerunner to s.170. In ruling against the plaintiff on the limitation point, His Honour went on to say:

"This does not mean of course that she has not got a good title to the land if she can prove it. All it means is that she cannot enforce her right by action in the courts. Supposing e.g. she got possession of this land, she could hold it . . . against the world because she would not be bringing an action then, she would be defending one. However, in this action she is making a claim and that is what she is not allowed to do."

I respectfully agree with that analysis and it is a complete answer to the preliminary point raised by the plaintiff in relation to s.170 of the Land Act.

The defendant's submissions in relation to the fraud allegation centred around a letter, which was produced as an exhibit, from the District Officer of the Lapaha District to the Minister of Lands dated 10 Dec 1980. As the defendant put it, the letter purports to be a compliance with the requirement of the Minister of Lands at the time, Hon. Tuita, that applicants for a town allotment had to "build their house on the land applied for before he would register their allotments." Mr Niu submitted that the letter falsely represented to the Minister on behalf of the plaintiff that the defendant's house on the allotment had been built for or by the plaintiff. The letter reads:

"Lapaha

10/12/80.

The Hon Minister of Lands,

Nuku'alofa.

Dear Sir,

I respectfully request your Honour that you kindly be informed that the town allotment of Vaisiliva Tukuafu has already had a wooden house with a 24 foot length veranda built on it together with a Tongan kitchen and a toilet with respect to your Honour.

Therefore, the Town Officer Matangi Kautai and I request that your Honour kindly register his town allotment. That is all.

Respectfully yours,

Manulevu Tatola,

District Officer Lapaha District."

Mr Niu submits that the letter is a fraud because the house in question belonged to the defendant. He submits that that in itself is sufficient to defeat the plaintiff's claim. Mr Tu'utafaiva in reply submitted that the letter cannot be considered fraudulent because it does not say that the house was the property of the plaintiff -- it merely states that there is a house on the land.

The concept of fraud involves dishonesty or moral turpitude. For the purposes of establishing civil liability, the test is summed up in the following passage from Halsbury, 4th edition vol 31, para 1059:

"Whenever a person makes a false statement which he does not actually and honestly believe to be true, for the purposes of civil liability, that statement is as fraudulent as if he had stated that which he did not know to be true, or knew or believed to be false. Proof of absence of actual and honest belief is all that is necessary to satisfy the requirements of the law . . ."

In terms of the necessary standard of proof for establishing an allegation of fraud in civil proceedings, Halsbury goes on to state (para 1060):

"In determining whether a representation alleged to have been fraudulent was so made, the standard of proof applicable is the civil standard of balance of probability and not the criminal standard of proof beyond reasonable doubt, but the degree of probability required to establish proof may vary according to the gravity of the allegation to be proved."

Applying those principles to the present case, if the letter of 10/12/80 stood alone then I would not be prepared to find that fraud had been established. The letter in itself is ambiguous as is the evidence before the court as to the Minister's exact requirements at the time. The defendant submitted that the Minister required applicants for town allotments to have built their own home on the land applied for before he would register their allotment but no documentary evidence was produced to substantiate this statement and the evidence from the Registrar of Lands did not express the proposition in such precise terms.

Mr Tu'utafaiva submitted that, whatever the position, the Minister had no power under the Land Act to impose such arbitrary conditions and, therefore, there could be no fraud in the letter because the Minister should not even have been considering the question whether there was a dwellinghouse on the allotment.

Strong support for Mr Tu'utafaiva's submission is found in the judgment of Webster J. in the Vai v 'Uliafu case where His Honour, in reference to a similar requirement by the then Minister of Lands, said:

". . . the practice followed appears to differ significantly from the provisions of the Land Act. It is never right for administrative practice to be out of step with statutory legal requirements, as this can cause great confusion and seriously mislead the ordinary people in their transactions."

Webster J. noted (p.60) that the Minister's practice was "not to register a town allotment unless he received confirmation that the applicant is in occupation and a house has already been built on it." That is a different requirement from the proposition as expressed by Mr Niu. In any event, the court understands that the practice has now been discontinued.

How much reliance, if any, was placed on the letter is conjecturable. It bears the same date as the Deed of Grant. The survey and other preliminary work required before a deed of grant could be issued had been completed long before.

The letter is, nevertheless, in my view significant because, coupled with all the other evidence before the court, it establishes, well beyond the mere balance of probabilities, that the plaintiff acquired his title to the allotment through a deliberate systematic fraud on the part of his father, Matangi.

Matangi was in a position of influence. He knew exactly what was going on. He was the Town Officer at Lapaha. He knew that his first cousin Emma and her husband, the defendant, had moved their house from Haveluliku onto the allotment at Lapaha and that they had lived in the house for more than a year before moving to the States. He knew that they had then left Pulotu in charge of the property while they were over in the States. He also would have been aware, because they were brothers, that Emma's father, "the old man" was not keeping good health. Although the exact date when Matangi took over as Town Officer was not established, he certainly held that position in 1980 and I consider it likely that his term covered the whole of 1980, including January when his son signed the application for a grant. Even if I am wrong on that point, however, I am satisfied that he would still have had considerable influence in the District at that stage.

Given this scenario, I have no doubt that Matangi, using his power and influence, then took advantage of the opportunity that presented itself through the defendant's absence in the States and his own son's temporary return, and he persuaded the estate holder to have the allotment registered in his son's name. He then would have had no qualms about writing the letter to the Minister, or at least in ensuring that it was sent. Because his son used his mother's maiden name, it is not apparent from the letter that the Town Officer is really endorsing an application by his own son. It is not surprising, furthermore, to find Matangi perpetuating the fraud some two years later when he listed himself in the Cyclone Relief Fund List as the owner of the defendant's cyclone devastated house.

Exactly how far the plaintiff was implicated in his father's fraud is conjecturable but he certainly has not helped his cause by electing to remain in the States rather than give evidence in support of his case. He knew that the fraud allegation had been pleaded by the defendant and yet he chose not to appear and answer it. The implications are probably obvious. After all, it was the plaintiff himself who signed the statutory application form for the grant of the allotment and in that application form, dated 23/1/1980, he falsely stated (apart from the fact that he was over the age of 18) that:

"I hereby agree to the grant of the allotment as described above and declare that there is no impediment to prejudice this grant." (emphasis added)

That declaration is a statutory requirement and yet the statement made by the plaintiff was blatantly false. The plaintiff would have been well aware that there was a house on the property and it was not his house but the defendant's. The plaintiff obtained his deed of grant, no doubt at the instigation of his father, through fraud and deceit. The court cannot endorse such conduct and on this ground alone the plaintiff's claim must fail.

That being my conclusion on the evidence, it is unnecessary for me to go on to consider the other interesting defences raised by the defendant. It is axiomatic, however, from my findings, that I have no reservation in also upholding the defendant's other allegation that the grant of the allotment to the plaintiff was invalid because, adopting the reasoning and the terminology used by Webster J. in the Vai case (p.64), it was made on a wrong principle in that, as a matter of fact, the allotment, or at least 30 perches of the allotment, was not "land available" within the meaning of s. 50 of the Land Act.

The plaintiff's claim fails. No doubt for the reasons already mentioned, no relief is sought by the defendant and none is granted. The defendant, however, is entitled to costs to be agreed or taxed. I also direct that a copy of this judgment is to be forwarded to the Minister of Lands.

NUKU'ALOFA: 12 SEPTEMBER 2002

JUDGE