Finau v Maamakalafi [2003] TOLC 2; LA 002 2002 (23 September 2003)

IN THE LAND COURT OF TONGA
NUKU’ALOFA REGISTRY

NO. LA 2/2002

BETWEEN:

KAITU’U-‘I-PANGAI FINAU
Plaintiff

AND:

1. SAMIU MAAMAKALAFI
2. TANGIMAUSIA MAAMAKALAFI
Defendants

BEFORE THE HON. MR JUSTICE FORD
ASSESSOR: MR TELANISI KAITAPU

COUNSEL: Mr Fakahua for the plaintiff and
Ms Tonga for the defendants.

Dates of hearing: 7, 8, 9, 10 April and 19, 20, 21 May (at Ha’apai);
22, 23 May and 7, 8, 9, 10 July 2003 (at Tongatapu)

Dates of written submissions: 6 August, 5 and 19 September 2003.
Date of judgment: 23 September 2003.

JUDGMENT

Background

In the village of Fotua on Foa Island, which is the main island in the Ha'apai group of islands, there are two particular allotments which became the focus of attention over the numerous sitting days occupied by this hearing. One of the allotments is situated almost in the middle of the village on the corner of the main road north and a side road which runs west down to the ocean. The other is situated at the northern outskirts of the village on the eastern side of the main road north. In evidence, this latter piece of land was referred to as the allotment on the "outskirts" or "boundary" and I will use those same general descriptions in much of this judgment. I will often refer to the other allotment simply by its location as the central allotment or the allotment in the
center of the village.

Ironically, each of these two allotments has a name. One is called "Lolopua" and the other is called "Heilala". Effectively, this case is all about which is which -- which allotment is Heilala and which allotment is the one traditionally known as Lolopua? The plaintiff claims that the central allotment is Lolopua and the allotment on the boundary is Heilala. The defendants, on the other hand, contend the opposite. The court has heard evidence from village people and others. The divergence of views on the subject is quite remarkable.

The reason why the names assume so much significance is that on 16 October 2000, the plaintiff became the registered holder of an area of 1 rood 10 perches which was originally part of the central allotment which he claims is called Lolopua. He now seeks an order evicting the defendants from his land. The defendants, for their part, contend that the Deed of Grant should never have been registered in the plaintiff's name because the central allotment was the land historically known, not as Lolopua, but as Heilala and Heilala belongs to the first defendant's father, Vaima'ali Mo'unga. The defendants, in other words, contend that the land was never available to be registered in the plaintiff's name.

Those, then, are the contentions for the respective parties. It is now necessary to examine the evidence in greater detail.

The official records.

The Registrar of Lands in Ha'apai, Soane Latu, ended up being called as a witness for both sides. She produced the relevant records held in the Ha'apai Lands Office relating to the village of Fotua but the historical information is of limited assistance in resolving the present dispute. It was clear from the Registrar's evidence that the real cause of the problem is that the land in the village has never been comprehensively surveyed.

Ms Latu produced the register book of town apis for the village of Fotua which has the two names Heilala and Lolopua recorded but the register does not identify exactly where in the village the allotments are located nor does it reveal the size of the allotments. There is no map or diagram in the register book. It records simply the names of each allotment and the holders. The evidence Ms Latu presented, however, is helpful in so far as the register book records the names of the various holders of each allotment going back to 1928. The details are:

HEILALA ALLOTMENT:

23 Feb 1928: First registered in the name of SIONE LATU (died 6/10/47).

29 Oct 1947: Grant to widow MAKELESI LONGO LATU.

15 June 1954: Registered in the name of TAPUA LATU under his a.k.a. name POUTAPUA KAMELIELI (died 26/4/92).

19 May 1993: Registered in the name of VAIMA'ALI MO'UNGA.

LOLOPUA ALLOTMENT:

23 Feb 1928: First registered in the name of FEHOKO SETE

20 June 1938: Registered in the name of SIONE FANGATUA (the evidence was that Sione Fangatua died in December 1973).

The Registrar indicated that in a situation where no survey has been carried out and it is not possible to determine the exact location or the area of the allotment in question, all the Lands Office can do is wait until the land is eventually surveyed and then the person whose ‘api is being registered would have to point out the area and the Town Officer and other residents in the village would need to be in general agreement with the boundaries so delineated. The Registrar confirmed that her office records show that on 16 October 2000 a portion of the central allotment comprising 1 rood 10 perches was registered in the name of the plaintiff, KAITU'U 'I PANGAI FINAU.

The allotment of 1 rood 10 perches was surveyed at the time and a Deed of Grant, Tahi 316 Folio 64 was duly issued to the plaintiff. The register book shows the name of that allotment as "Lolopua". On the face of it, that evidence is, of course, helpful to the plaintiff's case. It supports his contention that the part of the central allotment which he now holds was part of Lolopua - not Heilala. That evidence has no probative value, however, because when the plaintiff applied for his Deed of Grant, he described the area as Lolopua and the Lands Office apparently simply went along with that description.

The plaintiff's mother.

I now turn to consider the evidence relating to how the plaintiff, Kaitu'u, came to be the registered holder of the allotment in question. The history of the matter was comprehensively developed through the evidence of his 72-year-old mother, Ma'ata Latu. It is a rather complicated story because Ma'ata's family was connected with both allotments but I will endeavor to summarize the position as succinctly as I can.

It appears that Ma'ata was born illegitimate. It is not clear from the evidence whether her father and mother ever married but they did live together with her mother's parents. Ma'ata said that she was adopted in the Tongan customary way by her grandparents. Her father was hardly mentioned in evidence but her mother, ‘Elenoa, figured quite prominently.

‘Elenoa was the third child of Sione Latu and Makelesi Longo Latu. The first child, 'Elenoa's brother was Sione Fangatua (m). He died in December 1973 without issue. Then came a sister Lupe Latu followed by ‘Elenoa Latu; a brother Tapua Latu, a.k.a. Poutapua Kamelieli; another sister, Hingano Latu; and then the first defendant's father, Vaima'ali Mo'unga and a younger sister, Fangufangu Latu.

The evidence was that Vaima'ali was born out of wedlock - hence, he had the surname Mo'unga. It will be evident that some of these names are the same people mentioned in the evidence given by the Registrar of Lands in her analysis of the history of the two allotments. In effect, the main protagonists in this litigation, although neither is named as a party, are the plaintiff's mother, Ma'ata, and the first defendant's father, Vaima'ali

Vaima'ali is Ma'ata's mothers half brother. He lives in the United States of America. The evidence was that, apart from when he returned to Tonga to live in Fotua for a short period in about 1993, Vai has now resided in the United States for a considerable number of years.

To complete the genealogical background, it is necessary to return to Ma'ata's maternal great-grandparents i.e. Sione Latu's parents. They were Setelo and Fehoko Mu'akifolaha. Setelo used the a.k.a. Fehoko Sete. Again, that name can be seen above in the Registrar's analysis as the first registered holder of the allotment known as Lolopua.

To summarize the background, in other words, Ma'ata's grandfather, Sione Latu, was the first registered holder of the block of land recorded in the Lands Office as Heilala while her great-grandfather (Sione Latu's father), Fehoko Sete, was the first registered holder of the land recorded as Lolopua.

Ma'ata said in evidence that she was born on the allotment on the outskirts which was known as Heilala and she and her parents lived with her grandparents Sione and Makelesi Latu. When she was a child there were some large Heilala trees on the allotment on the outskirts and that is why it was called "Heilala". Ma'ata said that the other allotment in the center of the village was always known as Lolopua. It was owned by her great-grandfather Sete Fehoko and Sete and his wife had fostered Ma'ata's mother, 'Elenoa. Sete died when Ma'ata was very young but his wife Fehoke lived on and 'Elenoa took care of her in her latter years.

Ma'ata explained that there were some large Tongan pua trees on Sete's allotment and that is how it got the name "Lolopua". There was also a water tank situated on that allotment which was used to collect rainwater. Ma'ata vividly described how, when she was a young child, she was "a runner" between the two allotments. She would take messages and fetch water from the rainwater tank. She recalled how her elders often referred to the allotments by name. She would, for example, be told to take something over to" Lolopua" and vice versa.

In cross examination, it was put to Ma'ata that there were heilala trees on the central allotment. She responded:

"Since I grew up, I have not seen one heilala tree on that piece of land. Sorry counsel, but I have not seen one heilala tree at Lolopua."

It was also put to the witness that there were pua trees on the allotment on the outskirts. She responded:

"There was only one pua tree on that. My grandfather got a branch of the pua tree at Lolopua and he planted it at Heilala and I knew that because sometimes he got angry with me for moving the branch around and not leaving it alone to grow."

It was put to Ma'ata that Vaima'ali would say in evidence that there was never any heilala trees on the allotment on the outskirts. Ma'ata was adamant, however, that when she was young there were three big heilala trees on the allotment. She described how one, which was the one closest to their house, had been damaged when their house burned down and it eventually died. She said that the other two trees were still standing when she left Fotua to work in Tongatapu in 1949.

Ma'ata told the court that she was born on 6 February 1931. In 1943 she left her home in Fotua and moved to Tongatapu to attend school. She was at school in Tongatapu for some five years but she would always return to Fotua during the school holidays. When she finally left school and returned to Fotua in 1948 she lived with her parents who at that time were still living on the allotment on the outskirts looking after her mother's parents -- Sione Latu and Makelesi.

In 1949 Ma'ata returned to Tongatapu and commenced working as a schoolteacher. In 1951 she married Laulotu Finau. The plaintiff, Kaitu'u, is their fourth child. She did not then return to Fotua until around February 1970 after she and Laulotu had separated. The children stayed with the father on his tax allotment in Fatai, Tongatapu.

Ma'ata's move on to the land in question.

Ma'ata said that when her uncle, Sione Fangatua, heard that she had separated from her husband and moved back to Fotua, he came and told her and her parents to move on to his land at Lolopua and take care of it because at that time he was living at Tokomololo, Tongatapu. She was not keen on the idea because, apart from the piece of land on the corner of the two roads upon which the Church of Tonga was located, the central allotment was, at that time, covered in bush and scrub. Ma'ata estimated that at that stage it had been "abandoned" for at least 10 years.

Ma'ata did, however, decide that she would take up her uncle's offer and look after the allotment. She was given permission by her uncle to clear the land and she arranged for a caterpillar bulldozer to remove the bush and scrub. This work appears to have been carried out just prior to Sione Fangatua's death in December 1973. After Sione's death, his younger brother, Tapua Latu a.k.a. Poutapua Kamelieli, effectively assumed control of the allotment. Tapua was content to allow Ma'ata to continue in occupation. He told Ma'ata to build a Tongan fale on the part of the central allotment by the concrete water tank and he told her half brother (with a different father) Sione Kulikefu, to build a fale on the western side of the Church of Tonga. They duly did that. The area that was then occupied by Ma'ata's brother, Kulikefu, is now the land in dispute in this present litigation.

Thus, the whole of the central allotment which Ma'ata claims to be Lolopua, comprised of one roughly square shaped block of land approximately the same size as 4 average sized town allotments. For practical purposes, although it was one block only and the land had never been surveyed or subdivided, the residents seem to have treated it as four separate allotments. The Church of Tonga was situated on the corner of the main road and the road running west down to the beach, Kulikefu's allotment was next to the Church on the beach road and Ma'ata's allotment was immediately north of the Church on the main road, diagonally across from Kulikefu's allotment. The fourth allotment was occupied by a steward of the Church of Tonga.

Ma'ata recalled that in 1975 she was told by someone, following a visit by Prince 'Uluvalu to the island, that as her uncle Sione Fangatua had then been dead for almost two years and his widow had never transferred the central allotment into her name, the land would have reverted to the estate holder and it would no longer be in her family's name. Ma'ata passed that information onto Vaima'ali who was then living in the States, and between them they tried to arrange for all the land in the central allotment to be formally registered in the name of Sione Kulikefu, Ma'ata's half-brother. It is not clear from the evidence how far that attempt progressed. It was at that point (December 1975) that Ma'ata and her uncle, Tapua Latu, arranged a meeting with the estate holder, Hon Tu'ipelehake.

Ma'ata said that Hon Tu'ipelehake asked them who was residing on the central allotment and they explained to him that it was Ma'ata and her brother, Kulikefu. The estate holder then said, in hearsay evidence which I accept, that it was alright for Ma'ata and Kulikefu to carry on living on the land and looking after it for when the land was eventually surveyed and subdivided then it would be given to them (it is not clear how the estate holder was then proposing to give the land, or part of it, to Ma'ata). Ma'ata recalled that that meeting with the estate holder took place on the first Monday in December 1975.

Although, from the evidence the reasons for the exchange is not clear, it seems that at about the same time as the consultation took place with Hon Tu'ipelehake, Tapua Latu told Ma'ata and her brother to swap fales. Ma'ata duly shifted to the Tongan fale on the land in question and her brother Kulikefu moved over to the fale that she had been occupying on the allotment by the water tank. Ma'ata proceeded to then live on the land in question. In early 1982 she completed the construction of a more substantial timber and iron dwelling house on the site. She recalled, with some obvious pride, that in March 1982 when Cyclone Isaac devastated much of Tonga, her new house was left undamaged. Ma'ata planted some trees and erected a wire fence around her home. Thereafter, she continued enjoying undisturbed possession of the land in question. At some stage, which was not identified in the evidence, Ma'ata's half-brother, Kulikefu, moved to Australia where he still resides. His Tongan fale remained on the ‘api by the old water tank where he had been residing.

Vaima'ali Mo'unga.

The next development in the narrative came towards the end of 1993 with the arrival back in Fotua from the United States of Vaima'ali and his son, the first defendant. Before turning to consider those events, I should record a little more of the evidence touching upon Vaima'ali or "Vai" as he was referred to during most of the hearing. In a lengthy but well structured cross-examination, Ms Tonga elicited evidence from Ma'ata about Vaima'ali's movements in the early years. Ma'ata told the court that when she left Fotua in 1949 to take up her teaching career in Tongatapu, Vai and his family did not have an allotment to live on and they were "moving around". At that stage, they were living on the land by the water tank on the central allotment which was the land referred to during the hearing as Kulikefu's api. There was no one, however, then occupying the particular piece of land in question on the central allotment. Ma'ata also recalled that about the same time, i.e. in the late 1940s, Sione Fangatua arranged somehow for Vai to obtain a town allotment at Tokomololo in Tongatapu. The Tokomololo allotment known as "Pakula'a" is still, subject to a recent development I will refer to later, in Vai's name today. It is not clear from the evidence, however, if Vai has ever lived on the allotment.

Ma'ata also recalled that some years later when she was living in Tongatapu, she heard from Vaima'ali that he had actually built a timber house on the central allotment in Fotua -- not on Kulikefu's api but on the land in question. She believed that that was sometime between 1957 and 1958. She did not see the house because, following a court case, it apparently had to be removed. Vai sold it to the Mormon Church. The Church removed it from the site and Vai returned to Tongatapu to live. By the time that Ma'ata and her brother moved on to the central allotment in the early 1970s, Vaima'ali and his family had long left Fotua.

Ma'ata, as has already been observed, estimated that when she moved onto the central allotment the land had been abandoned for at least 10 years. I find that evidence consistent with evidence given subsequently by the first defendant, Samiu, who told the court that Vai left Fotua and moved to Tongatapu in 1962 or 1963 and then in 1969 he migrated to the United States where, apart from an eventful return visit in 1993/ 94 which I shall now refer to, he appears to have resided ever since. The court was told that the defendants had proposed to call Vai as a witness in their case but he took ill and a medical certificate was produced confirming his admission to a hospital in Utah in America. The court, therefore, relies largely upon Ma'ata's account of what happened when Vai and his son Samiu returned to Fotua from the United States in 1993.

Vaima'ali's return from America.

Ma'ata explained that Samiu's first wife had been killed in an accident in the USA and with money Samiu then received he and his father decided to return to Tonga. Because they had nowhere else to live they stayed with Ma'ata in her house in Fotua on the allotment in question but at night Samiu slept in the Tongan fale left vacant by Kulikefu after he moved to Australia. Ma'ata recalls Samiu asking her if she would like a shop built on the front of her house and she was happy with that proposal. Vai told her that the main reason why they had returned from the States was to build a shop for her and a house on his own allotment at Tokomololo which they were proposing to then sell. In fact, nothing was built at Tokomololo. During construction of the shop at the front of her house, Ma'ata prepared food for the builders and paid for some of the construction materials. A workshop was also built close to the shop. Ma'ata said that around this time Samiu travelled back and forth between Ha'apai and Tongatapu and he also returned to the United States for a period.

The shop eventually opened sometime in 1994 or 1995. Ma'ata stocked it, with help from her children, and ran the business completely. By the time the shop opened, Vai had returned to the United States but Samiu was back in Fotua.

Ma'ata and the defendants.

It appears from the evidence that not long after Vai returned to the States, the relationship between Ma'ata and the first defendant, Samiu, began to deteriorate quite rapidly. Ma'ata made allegations in evidence about money and goods disappearing from the shop and clearly she suspected that Samiu was the culprit. It is also apparent that Ma'ata took an instant dislike to the second defendant who was then living with Samiu in a de facto relationship. Ma'ata strongly disapproved of the couple living in a de facto relationship which she considered was against Tongan custom. For her part, the second defendant told the court that Ma'ata did not like her. They were not on speaking terms and at one stage Ma'ata threatened to kill her with a hammer before Samiu intervened. On another occasion Ma'ata threatened her with a knife. Neither of these incidents were put to Ma'ata in cross-examination but no exception was taken on that count. They illustrate the intense antipathy which then existed between Ma'ata and the second defendant in particular.

Matters came to a head around September 1997 when Ma'ata claimed that Samiu locked her out of her property. The shop had been closed down sometime before then. Ma'ata said that she was scared of Samiu. She went to live in the "shack", as she called it, which had been Kulikefu's Tongan fale. Samiu left her furnishings and possessions in the open field alongside her ‘api.

In April 1999 Ma'ata received a letter from the defendants' solicitors ordering her to "vacate the town allotment of Vaima'ali within three months from receiving this letter." She was warned that if her house, on the allotment in question, had not been removed in that time then it would be demolished. Samiu said in evidence that he talked to Ma'ata in May or June 1999 and told her to move her house onto Kulikefu's allotment. He said that she accused him of causing a disturbance and she told him that she would not move her house and that it would not be moved. Samiu then explained to the court how, with help from other people in the village, he proceeded in about August 1999 to demolish Ma'ata's house. He then built another house on the allotment in question which he and the second defendant, who he had married in June 1998, have resided in ever since.

The foregoing is necessarily a summarized version of the historical evidence the court heard relating to the land in question. Much of the evidence given on behalf of the defence has already been incorporated into the narrative. There were other additional matters Samiu spoke about which should also be mentioned. When he was asked, for example, in evidence in chief why he and Vaima'ali had come back to Fotua from America in 1993, he answered: "to build Vai's house on the allotment Heilala which was already held by Vai at the time."

Samiu denied that Ma'ata was told that the shop would be built for her. He said that nothing was said to Ma'ata at the time "because it was already understood that she was residing on the land held by Vai." Samiu also said that he and Vai bought the goods to stock the store and that Ma'ata and her children did not make any contribution. Samiu told the court that the shop belonged to him and it was intended that his niece would run the business.

As will already be evident from my extensive referrals to her evidence, I found Ma'ata to be a reliable and credible witness and I preferred her evidence whenever it conflicted with evidence given on behalf of the defendants. In other words, in relation to these points made by Samiu, I accept that Ma'ata was asked about the shop and given the impression that it was being built for her. I also accept that it was stocked by her with help from her children and not by Vai and Samiu. Ms Tonga in her submissions referred to the first defendant's evidence where Samiu denied that Ma'ata had been chased out of her home by the defendants but, quite simply, I do not accept that evidence and I accept Ma'ata's version of events.

Samiu confirmed that sometime before he demolished Ma'ata's house he had received a telephone call from his father Vai instructing him to move on to the land that Ma'ata then occupied. There was also evidence that in 1998, Vai had taken trespass proceedings against Ma'ata which were heard in the Magistrates' Court in Ha'apai. The magistrate apparently held that the name of the allotment in question was Heilala and that Heilala is registered under the name of Vaima'ali Mo'unga "of Fotua". He found Ma'ata guilty of trespassing on Vai's property. Ma'ata told the court that she then appealed the magistrate's decision and the Supreme Court directed that she should remain on the land until the legal position could be clarified at a later date. Neither of the judgments recording these findings were produced in evidence but Ma'ata's version of the two court decisions was not challenged.

Registration by the plaintiff.

Although she could not remember the exact dates of her visit, Ma'ata said that after she was evicted from her home, she went and complained to the estate holder, the late Hon Tu'ipelehake, and she explained how the "American people" had come and chased her out of her house and she was then living in the shack on another part of the allotment. She said that the Hon Tu'ipelehake was very old at the time and she conveyed her message to him through his son, Prince 'Uluvalu. She was told to continue dwelling on the land.

Ma'ata then described the actions she subsequently took to have the allotment in question registered in the name of her son, the plaintiff. She had a sketch plan drawn up showing the location of the allotment and she made several visits to Hon Tu'ipelehake and to the office of the Governor of Ha'apai, the Deputy Minister of Lands (now the Minister) Hon Fielakepa. Ma'ata said that Hon Tu'ipelehake had suggested to her that she should arrange for an application to be lodged in her son's name for the allotment in question. He also suggested that she should arrange for her brother in Australia, Kulikefu, to lodge an application for the other allotment upon which his original Tongan fale (the "shack") still stood. Ma'ata followed that advice. The estate holder signed both applications on the same day and then Ma'ata took them to the office of the Ministry of Lands.

Both the Hon Fielakepa and the current Hon Tu'ipelehake were called as witnesses by the defence but, in general, their evidence was more supportive of the plaintiff's case. They gave helpful evidence which I have no hesitation in accepting. Hon Fielakepa told the court that following a survey of the land in question, he gave his approval to the plaintiff's application on 16 October 2000. By that time he had been appointed Minister. The Deed of Grant was eventually issued in the plaintiff's name of 5 November 2001.

The legal principles.

The principle is well-established that any person seeking to upset a registered Deed of Grant faces a formidable task. Until it is established to the contrary, the court will presume that the register is correct. Registration is final unless it has come about as a result of an error of law (i.e. contrary to the Act) or as a result of fraud, mistake, breach of the principles of natural justice or of a promise made by the Minister.

The defendants plead that "the grant to the plaintiff was wrong in fact and in law." The basis for the allegation is said to be, "that the information given by Ma'ata to the estate holder was untrue" in that she did not inform the estate holder that, "the exact land in dispute had been registered by Vaima'ali Mo'unga." It is also alleged, "that the plaintiff has never been a resident of Fotua, Ha'apai, or in any of the estate of the estate holder, the Hon Tu'ipelehake."

The document which the defendants rely upon as evidence that the land in question is registered in the name of Vaima'ali Mo'unga is a "Certificate of Land Apportionment in the Kingdom of Tonga". It is a one-page certificate on Ministry of Lands letterhead addressed "TO WHOM IT MAY CONCERN". The body of the certificate states:

"This is to certify that Vaima'ali Mo'unga of Fotua Township and Ha'apai in the Kingdom of Tonga has been conditionally registered 23.2.1928 a plot of town allotment at Fotua Township with the area of 1r 24p for residence purpose (sic)."

The evidence was that following on from the death of his older half-brother, Tapua Latu (a.k.a. Poutapu Kamelieli) in 1992, Vai completed an heir's affidavit claiming title to the allotment Poutapu had held, which was recorded in the official Register as "Heilala". In response, the Lands Office issued Vai with the Certificate of Land Apportionment and that is the document which the defendants now rely upon in claiming title to the central allotment.

The plaintiff, of course, contends that the defendants have it all wrong because Heilala is not the central allotment but the allotment on the outskirts. In addition, however, Mr Fakahua challenges the whole validity of Vai's claim to any allotment in Fotua on two grounds. First that he had migrated to the United States and he was no longer a Tongan subject in terms of the Land Act and, secondly, on the grounds that when he swore the heir's affidavit, he failed to disclose to the Minister the fact that he was already the holder of a town allotment at Tokomololo. Section 48 of the Land Act precludes any person from holding more than one town allotment. As Vaima'ali did not give evidence in the case, neither of these matters could be explored by Mr Fakahua in cross-examination.

Returning to the Certificate itself, at the foot of the certificate are two spaces. One allows for the signature of the, "Secretary for Lands & Natural Resources" and the other states, "Checked by" with a space for the signature of the "Clerk to the Minister of Lands". The two signatures on this particular Certificate were that of the same person. The court was told that the signatory was Makafia Taungata'u who was the assistant Secretary for Lands.

Although, on the face of it, the Certificate of Land Apportionment appears to have some official status, it is not a form provided for or recognized anywhere in the Land Act. The current Registrar of Lands in Ha'apai, Soan Latu, told the court that they call the certificate the "blue form" (it is printed on coloured colored paper) and it is commonly used to support applications for visas and loan applications made to banks and other lending institutions.

It appears that historically the Certificates have been used in cases where land has never been registered as evidence that the person named therein is the holder of an allotment although, in the case of a town allotment, there is absolutely no method of identifying from the Certificate itself exactly where in a village the allotment is situated. The Registrar explained that no reliance can even be placed on the area shown in the Certificates. In the present case, for example, the Certificate in the name of Vaima'ali shows an area of 1r 24p but the Registrar explained that that figure has been inserted simply because the area of 1r 24p is the maximum lawful area for a town allotment.

The court was told that when a Certificate holder eventually applies for a Deed of Grant, the land is surveyed and if there is any dispute over the location or boundaries of the land claimed by the Certificate holder then that dispute is resolved by consultation with the Town Office and other village people. The current Minister of Lands said in evidence that he is reviewing the use of the Certificate of Land Apportionment forms. The Minister told the court that the forms have been abused in the past. The Minister's review is timely. It is unwise for the Ministry of Lands to be issuing any type of official documentation purporting to evidence land registration unless that documentation is in a format specifically prescribed in either the Land Act itself or in regulations made pursuant to the Act.

The Certificate of Land Apportionment produced by the defendants does not, therefore, establish the defendants' claim to the land in question. The defendants, however, seek to rely also on the register book which records that on 19 May 1993 Vaima'ali Mo'unga was registered as a holder of the allotment known as "Heilala" and they claim that Heilala is, in fact, the proper name of the central allotment or, in other words, the allotment in question.

When, however, the Registrar of Lands was asked by the court whether the land registered in Vaima'ali's name in the register book could be the same land as that contained in the plaintiff's Deed of Grant, i.e. the land in question, she replied, "I believe not, according to my records."

The defendants further sought support for their case from an alleged association between each of the two town allotments and two tax allotments near Fotua named "Puha 1" and "Puha 2". The argument on this submission was complicated and the evidence confusing. At the end of the day I did not find the evidence touching upon this aspect of the case conclusive one way or the other.

Conclusions on the evidence.

The defendants called a number of witnesses from the village of Fotua who, to varying degrees, deposed that they understood the allotment in question was Heilala and that it was Vaima'ali's allotment. I listened carefully to all the evidence adduced through those witnesses but I did not find any of it conclusive on the central issue. One of the more impressive witnesses called on behalf of the defence was Siope Kanongata'a who in the late 1990s was given the matapule name, "Kaimana". He said that he understood that the land had belonged to Vai. Siope went to school in Tongatapu between 1958 and 1964 and he said that when he returned to Fotua, Vai had left the village but he remembered when his house had been bought by the Mormon Church.. The witness strongly challenged Ma'ata's evidence that there was bush and scrub on the allotment and that Ma'ata had used a bulldozer to clear the area. He said that there was no bush and he could not recall a bulldozer ever having been used to clear the area. Although, as I have noted, Siope impressed me I have no hesitation in accepting Ma'ata's account of how she cleared the allotment with the caterpillar bulldozer. Her evidence in this regard was confirmed by an equally impressive witness for the plaintiff - Sitaleki Mahe. Sitaleki recalled that, at the time, the bulldozer was working around Fotua as part of a government project to plant more coconut trees and Ma'ata was able to obtain the use of it. I can only conclude that Siope was genuinely mistaken on this aspect of his evidence.

As to the crucial question of whether the central allotment was Heilala or Lolopua, I found none of the witnesses called for the defence to be as authoritative and credible as Ma'ata. The plaintiff, particularly through his mother's evidence, has persuaded me well beyond the balance of probabilities that the land in question is part of the land historically known as Lolopua and the land known historically as Heilala is the other allotment on the outskirts of the village of Fotua.

The fact that her uncle Sione Fangatua had invited Ma’ata in the early 1970’s to move onto "his land" at Fotua and that the land was unmistakeably identitied at the time as the central allotment is, of course, significant. The Lands Office records show that Sione Fangatua’s allotment was called "Lolopua".

I also find it significant that in December 1975, over two years after Sione Fangatua’s death, his brother Tapua had gone with Ma’ata to see the estate holder and they had discussed who was then residing on Sione Fangatua’s land and the other matters referred to earlier in this judgment.

The answers given by Tapua and Ma’ata to the estate holder’s questions show clearly that they were talking about the central allotment. That evidence, again, can only mean that Sione Fangatua had been the holder of the central allotment and, as noted, the Lands Office records show that, whatever allotment was held by Sione Fangatua, its name had been registered as "Lolopua".

In addition to these matters, there was credible evidence given on behalf of the plaintiff by a Mr Lopeti Hoeft, a 68-year-old planter which supports the case for the plaintiff. Back in 1991 Mr Hoeft made application for a town allotment in Fotua which was part of the allotment on the outskirts. He told the Court that at the time he was living with Tapua Latu and his wife and Tapua had asked him if he wanted a piece of his land. According to the Lands Office records, Tapua was the registered holder of the allotment known as Heilala.

As it turned out, no Deed of Grant was ever issued to Mr Hoeft because he decided not to proceed with the transaction but the plaintiff produced in evidence Mr Hoeft's actual application form which had been signed by the estate holder, the late Hon Tu'ipelehake on 2 September 1991, and the land applied for is described in that application form as "Heilala". Mr Hoeft told the court that he understood "Heilala" was the name of the land on the outskirts which he had applied for. In her very detailed submissions in reply Ms Tonga criticised aspects of Mr Hoeft’s evidence and there was substance in some of her observations but on the crucial issue of the location of the two allotments I found his evidence credible and helpful.

I am further fortified in my conclusion that the land in question is Lolopua by the evidence that was given by the Hon Minister of Lands. He had an intimate knowledge of the dispute. He told the court that some years ago, well before his appointment as Minister, he had correctly presaged that the matter would end up in litigation before the Land Court and, for that reason, he took particular care to record all relevant matters on the Ministry's file. The Minister was called on behalf of the defendants as their last witness. In cross-examination by Mr Fakahua, the Minister, while quite properly acknowledging that ultimately the issue was one for the court to determine, opined that from official records and his knowledge of the matter, he understood that the land on the outskirts was that historically known as Heilala and the land in question in the center of the village was that known as Lolopua.

I, therefore, reject the defendants' allegations that the land in question had been registered in Vaima'ali Mo'unga's name and, therefore, was not land available for allegations to the plaintiff.

The defendants also pleaded that the plaintiff had never been a resident in any estate of the estate holder and, therefore, his application for the allotment failed to comply with rules (a) and (b) of section 50 of the Land Act which sets out the rules for the allocation of allotments. Even accepting this submission, however, the evidence failed to satisfy me that the situation was not covered by rule (c) and, in any event, there was no evidence of any misrepresentation by the plaintiff or his mother in connection with the application. The current Hon Tu'ipelehake said in evidence that he was aware that the plaintiff was not a resident of Fotua at the time his application was presented and the evidence satisfied me that the estate holder knew about the plaintiff’s situation in this regard but he was also aware of the plaintiff's historical links, through his mother, with the land in question.

Likewise, there was no evidence that the Minister had been misled by the plaintiff or his mother on any aspect of the plaintiff's application. On the contrary, the Minister was keenly aware of the background giving rise to the dispute and he had full knowledge of the defendants' involvement and their alleged claim through Vaima'ali to the land in question.

Without having to decide the point, there would also seem to be some validity in the two criticisms raised by Mr Fakahua about Vaima'ali's entitlement to hold any town allotment in the Kingdom given the evidence, in particular, that he has long been the holder of a town allotment in Tokomololo. When the Minister gave evidence on 9 July 2003 he told the court that two weeks previously he had received a letter from Vaima'ali requesting the surrender of his allotment at Tokomololo. The Minister said that up until then he had been unaware that Vaima'ali already held a town allotment in his name. He said that he was very surprised to receive the letter from Vaima'ali knowing that the court case was still proceeding. He confirmed that Vaima’ali was unable to hold two allotments. In her submissions in reply Ms Tonga claimed that registration of the allotment at Tokomololo in Vaima’ali’s name was effected by someone else without his knowledge, but there was simply no evidence before the Court to that effect and, if true, it would indeed be a surprising situation.

Vaima'ali's failure to give evidence in the case was not helpful to the defence. He was, apparently, present when the case began in Ha'apai in April and Ms Tonga cross-examined witnesses for the plaintiff on the basis of propositions that he would be putting forward in evidence. The medical certificate provided to the court lacks any detail. It simply says: "Mr Mo'unga has been hospitalized at Cottonwood Hospital and, therefore, is unable to travel to a court hearing." The certificate is dated 8 July 2003. The signature at the bottom of the certificate is completely indecipherable and there is nothing to indicate whether the signatory is even a medical practitioner. The nature of the complaint is unspecified and it is not clear how long Mr Mo'unga was going to be indisposed. No application was made by defence counsel for an adjournment or to have Vaima'ali's evidence taken in some other way. In all the circumstances, Mr Fakahua was entitled to express concern about Vaima'ali's non-appearance.

In terms of the defence case generally I would add this: even had I been persuaded (which I have not been) that the defendants were entitled to rely upon some equitable defence, I would not have been prepared to uphold it. I find their conduct (particularly that of the first defendant and his father Vaima'ali) in obtaining access to Ma'ata's home through misrepresentation and deception and then in evicting her and demolishing her home, reprehensible, high-handed and totally abhorrent to the accepted modes of resolving land disputes in the Kingdom.

The court is aware, because it was mentioned in evidence, that the plaintiff's mother, Ma'ata, has issued separate civil proceedings seeking monetary compensation for her wrongful eviction and for the demolition of her home and resulting damage to her furnishings and effects. Counsel sensibly indicated that, depending upon the court's findings in the present case, they anticipated being able to resolve those civil proceedings out-of-court. Given Ma'ata's age and the amount of suffering she has already endured to date because of the wrongful actions of the first defendant and his father, this court expresses the hope that those other matters will be resolved as expeditiously as possible.

The plaintiff succeeds in his action and an order is made in terms of the prayer for relief in the statement of claim for the eviction of the defendants from the plaintiff's town allotment in Fotua. No other orders, apart from costs, are sought and given the anticipated negotiations that will now take place in connection with the civil proceedings I have just referred to, I deliberately refrain from making any further orders giving effect to the relief which I have just granted. I reserve leave, however, should it be necessary, for the plaintiff to approach the court at any time on notice to seek further supplementary orders to give full effect to this judgment.

The plaintiff is also entitled to costs to be agreed or taxed.

NUKU'ALOFA: 23 SEPTEMBER 2003.

JUDGE