Church of Jesus Christ of Latter Day Saints in Tonga Trust Board v Fepale [2009] TOLC 1; LA 08-2008 (15 June 2009)

IN THE LAND COURT OF TONGA
NUKU’ALOFA REGISTRY

LA 8 of 2008

Between:

THE CHURCH OF JESUS CHRIST OF LATTER DAY SAINTS IN TONGA TRUST BOARD
Plaintiff

And:

1. LOPETI FEPALE
2. FUTAKIHA’ANGANA FEPALE
3. MINISTRY OF LAND
Defendants

BEFORE THE HON. JUSTICE ANDREW

Counsels: Mr Niu for the Plaintiff
: Mr Edwards for the 1st & 2nd Defendants
: Mr Kefu for the 3rd Defendant

Date of Hearing: 10 June, 2009
Date of Judgment: 15 June, 2009

JUDGMENT

This is an application by the 1st and 2nd defendants to strike out the plaintiffs action. There are 2 grounds advanced namely that the statement of claims discloses no reasonable cause of action and secondly that the plaintiff has no standing (locus standi) to bring this actions.

NO REASONABLE CAUSE OF ACTION

Briefly stated, the decision of the Minister of Lands to grant 2 town allotments to the 1st & 2nd Defendants is being challenged.

The Plaintiff is the lessee of the two allotments in question and has been in occupation for the part 29 years and is paying rent. The Plaintiffs claim is that the original owner of the allotments died in 2003 and as there were no lawful heirs the allotments reverted to the cousin. The plaintiff had built a church in the lease No.3859 and the land in lease 3860 was used as a playground. The Plaintiff says that it did not know and was not consulted as lessee by the first and second defendants when they applied for the grant of the allotments. Further it is claimed that the Ministry of Lands knew that the plaintiff had valid leases over the allotments but did not consult the plaintiff before granting them to the 1st & 2nd defendants. There is an issue as to the granting of allotments where they are lawfully occupied by a lessee. There appear to an issue of as to the granting of an allotment to a granting of an allotment to an adopted son of the landowner. The plaintiffs refer to the authority of ‘INOKE FAFA and others, decision of the court of Appeal in AC03/2006, decision of the 16th August, 2006.

The Plaintiffs cause of action (as pleaded in clause 15 of the Statement of Claim) in that the grants made by the Minister of Lands to the 1st & 2nd defendants were and are invalid.

The 3rd defendants attitude to these applications is that it takes a central stance as to the conflict between the parties but acknowledges that the question of law which are raised relate to important issues such that this case may be something of a test case.

I consider that the Plaintiffs claim is a legitimate one and one that it is entitled to make. I consider it be a reasonable cause of action based on the circumstances which have been referred to. The interests of the Plaintiff are clearly at state.

I consider that there is a proper cause of action and that the plaintiff has the appropriate standing to make this claim.

I would not strike the claim out.

The application is dismissed costs of this application to the costs in the cause.

NUKU’ALOFA: 15 June 2009

JUDGE