Vainikolo v Kaihea [2009] TOLC 7; LA 11 of 2008 (24 April 2009)

IN THE LAND COURT OF TONGA
NUKU'ALOFA REGISTRY

LA 11/08

BETWEEN:

UIKETAPU VAINIKOLO
of Ma'ufanga – but currently residing
in the United States of America
Plaintiff

AND

FELETI KAIHEA
of Ma'ufanga, Tongatapu
First Defendant

AND

MALIA KAIHEA
of Ma'ufanga, Tongatapu
Second Defendant

BEFORE THE HON MR. JUSTICE SHUSTER

ASSESSOR MR MANGISI
MR DAVID GARRETT FOR THE PLAINTIFF
MR. LAKI NIU – FOR THE FIRST AND SECOND DEFENDANTS

TRIAL 18-11-08; 05-01-09; 20-21-01-09
JUDGMENT 24th APRIL 2009

JUDGMENT

BACKGROUND

The plaintiff's claim is that he is currently registered as the holder of an allotment which is the central issue in this case. The registration of the allotment (hereinafter called the land) with the Nuku'alofa Land Office, occurred in July 2007 - Registration occurred after several approaches were made by the plaintiff to the Fakafanua; (the estate holder (tof'ia) now identified as "the present Fakafanua"

The plaintiff accepts he has no claim to the land by line of descent, but he also argues - neither does anyone else. The plaintiff claims he has family, and also blood ties to the land; because his grandmother was the sister of the last legal holder of the land - a grandmother - who left no male heirs when she died

The second defendant is an illegitimate child - again with no direct blood connection to the land. Her claim to the parcel of land; arises from the fact she was fostered by the daughter of the last legal holder of the land, and her claim is also based upon her families long term - that is to say 19 plus years of she says lawful residence - on the land.
The first defendant is h an adult male, and a resident of Ma'ufanga, and as a male he was lawfully entitled to apply to the Noble (tof'ia) for an allotment- he never did. The only connection the first defendant has to the land is by his marriage to the second defendant. The defendants have a son who recently turned 18. The defendant's son has also taken no formal steps to apply for registration of this parcel of land, despite having becoming entitled to, upon turning 16.

Via her evidence, the second defendant (a police officer) said she was aware the land could never be registered in her name; as the law now stands. The second defendant constantly averred the land could, and it should be registered in her son's name. The defendant's 18 year old son did not give evidence in this case.

The plaintiffs claim

The plaintiff's claim is set out under - three grounds.

[a] The first ground is the plaintiff is the legal holder of the allotment, having obtained registration of the land- without fraud, or, any other improper conduct.
[b] The second ground is that the plaintiff has blood ties to the land- ties derived through his grandmother.
[c] The third ground is that the defendants are at best occupiers, and- occupiers under a bare licence which is terminable at any time by the landholder, and, at the very worst- they are squatters.

The Law and the Burden of Proof

The plaintiff's submission is - this is an unusual case. It is unusual in that although the case is brought by the plaintiff; by its very nature; it is also a challenge by the second defendant - to the plaintiff's right to become the registered holder of the land. The case was brought by the plaintiff; because the defendants refused to move from the land, despite the land, being registered in the plaintiff's name at the Land Office, since July 2007.

The plaintiff's case is also that by virtue of his formal registration of the land, the plaintiff is prima facie entitled to be assumed to have obtained a valid grant of the land.

The plaintiff says the burden of proving the grant is invalid and that the registration is accordingly invalid therefore falls on the defendants. The plaintiffs says the defendants must show in law that their equitable claim - whatever its basis — is superior to the plaintiff's legal claim, by virtue of the plaintiff applying for; and, by the plaintiff registering the land.
The plaintiffs say the applicable law - whenever a person seeks to overturn a grant of land because of a claimed equitable interest- has been set out, both at the Privy Council and, at the Court of Appeal level and they cite the case of: - Havea v. Tu'i'afitu, Kava and Minister of Lands [1979-1980] Tonga LR 55 at 56 where their Lordships stated the law to be as follows:-

"The court will upset a grant only if a person challenging its validity establishes that the Minister has acted on wrong principles which means that the Minister has acted contrary to statute or in breach of the rules of natural justice, or in breach of a clear promise by the Minister and the tof'ia holder"

In Moa v. Faka'osita and Ors [1991] Tonga LR 32 at 33 (CA.) the Court of Appeal endorsed a very similar language - stating:

"The Minister or Deputy Minister has a wide discretion in deciding who should be granted allotments and this Court [the Land Court] should only interfere if it is clearly shown to have been exercised - on wrong principles."

The plaintiff says it is proper to acknowledge the important role in such cases, of the tof'ia holder, who they say in this case, is the present Fakafanua. The plaintiff says that in Tonga, land allotments are properly made by the Noble in whose estate the allotment lies: ##- provided there is no material irregularity, such as a fraud or breach of the law: -which may be discovered by either the Ministry of Lands - or by the Minister or his Deputy Minister.

Given the wide discretion referred to in Moa, the plaintiff's says it is proper to note the remarks in the judgment of the Privy Council in Havea (supra.) regarding the role of the role of the tof'ia holder:

• "On the question of family connections, the judge said there was no evidence on the point, but stated as he was entitled to do, that the tof'ia [holder] is considered to be an expert on Land Law

The plaintiffs say it was extremely unlikely that in the present case, the tof'ia has failed to consider family custom. In the present case the plaintiff says - the following was well established by the evidence: The plaintiff, when he approached the present Fakafanua seeking to have his application for his land registration signed, says the plaintiff fully disclosed the land was presently occupied by others, and he fully explained who the occupiers were.

The plaintiff says before granting the allotment, the present Fakafanua made enquiries of the plaintiff, as to the basis of his claim, and also his family connections to the land, and, after satisfying himself of the legitimacy of the claim, the present Fakafanua then signed the plaintiff's application for the grant. The plaintiff says the Minister of Lands - if not prior to the registration of the land - then immediately afterwards - the Minister was made fully aware of all the facts.

That is assertion is hotly disputed by the defendants.

The Plaintiff is lawfully registered as the allotment (land) holder

The plaintiff via his statement of claim says - the starting point must be that the plaintiff is lawfully registered as the holder of the allotment; and the first question to be answered before any consideration takes place of any competing interest is- whether the registration of the piece land - was lawful?

The plaintiff's says the evidence revealed the plaintiff is - and at all material times was a male Tongan, over 18 years of age, with ancestral ties to the Ma'ufanga estate, the landholder of which- is the present Fakafanua. They say the present Fakafanua has on the evidence accepted the plaintiff's claim that the plaintiff- is entitled to be registered as the allotment holder - because of his ancestral ties to the land, albeit those ties are derived through the plaintiff's grandmother-not his grandfather.

The plaintiff says it must be accepted by the parties; that the promise of the late Fakafanua to the plaintiff cannot in itself provide the plaintiff with a cause of action. The plaintiff says the uncontradicted evidence, of the various meetings between the plaintiff and all three holders of the Fakafanua title, goes a long way to support the proposition that the plaintiff, as a male Tongan; with long standing ties to the .Ma'ufanga estate, and in particular to this piece of land- entitled him to be registered as the holder of that piece of land on the estate.

The plaintiff says that while the plaintiff is not entitled to the land by descent that does not mean his blood connections via his Grandmother are irrelevant - although, he accepts they would be irrelevant- if the last landholder had left male descendants, and the plaintiff had no connection with the male heirs.

The present Fakafanua - the plaintiff argues is an intelligent and well educated man - as such he is - and he would be very much aware of his specific role in Tongan society. The plaintiff argued the present Fakafanua was left in no doubt (and said so in his evidence) - that the plaintiff had the right to be the registered holder of that land.

The plaintiff says - the present Fakafanua confirmed in evidence, the plaintiff prior to asking the present Fakafanua to sign his application, had informed the present Fakafanua of the fact that the second defendant was occupying the land, and the plaintiff had fully explained the nature of the defendants' claim to this piece of land. In possession of all the facts, the plaintiff says the present Fakafanua went and signed the plaintiff's application document - they argue by signing the document and by assenting, the present Fakafanua fully endorsed the plaintiff's application for the land.

The defendants disagree: - they question-- did the present Fakafanua with all that knowledge then approach the defendants. Did he take any time to visit - to see if the piece of land was available? The evidence given by the present Fakafanua - in court on oath reveals - the Fakafanua admitted he had never met the defendants in this case. He did not visit them, and he did not visit the land the locus in quo.

The issue of - the Plaintiffs residence in the USA

It was suggested the plaintiff was not entitled to be registered as the allotment holder of the land in question - because the plaintiff was not currently resident either in; or on the Ma'ufanga estate. In his evidence in chief, the plaintiff says he made it clear his primary residence was in the United States, although he also told the court he returned to Tonga often. He also made it clear he was careful to have customary obligations performed for his Noble - by immediate relatives during his absence abroad.

Section 50 (a) of the Land Act provides that:

(a) An applicant for an allotment, lawfully resident in a hereditary estate, shall have his allotment out of land available for allotments in that estate.

It has been argued on a number of occasions; that unless an applicant is resident in / on the particular estate at the time the allotment is registered to him, then that registration is invalid. It was submitted by the plaintiff, that it is now well established this argument alone is insufficient - to invalidate the grant of a piece of land.

In Havea v T'i'afitu, Kava and Minister of Lands [1974-1980] Tonga LR (P.C.) the question of "residence" was addressed. The appellant in that case claimed that because the respondent was resident in Ha'apai, he was not entitled to be registered as the holder of an allotment elsewhere in Tonga.

In rejecting that argument, their lordships made two important points:

1.1.1. That the courts will upset a grant only if the person challenging its validity establishes that the Minister acted on wrong principles – which means that the Minister has acted contrary to statute, or in breach of natural justice, or in breach of a clear promise by the Minister and the tof'ia holder; and secondly
1.1.2. Even if the person to whom the land had been granted was not shown to be resident in the tof'ia before the grant, this did not cause the grant to be invalid under s.50 of the Land Act.

The plaintiff argues the first finding in Havea is relevant to the wider issues in the present case, but for the moment they submit that the case is authority for the proposition that establishing that a person is not primarily resident in a tof'ia - is not a sufficient ground for disturbing a grant. The plaintiff says the residence issue came before the Privy Council - again in Kaufusi v. Taunaholo [1981-88] Tonga LR 70 (P.C.)

The facts of this case are not dissimilar to those in the present case, in that following the surrender of land in favour of Taunaholo, an application was made for registration of the allotment, which application was opposed by two persons; who had been living on the land for quite some period of time. Note that land was surrendered - this land was not.

In Kaufusi, the Supreme Court upheld Taunaholo's claim, and ordered that the surrendered portion be registered in his name. The occupiers appealed to the Privy Council. One of the grounds of appeal was that Taunaholo had never been a resident of Haveluloto, and that s.50 of the Land Act debarred him from a grant of land. The appellant's arguments failed, and Taunholo's grant was upheld. The issue of residence arose again before the Court of Appeal in Moa v. Faka'osita, H'alaufuli & Minister of Lands [1991] Tonga LR 32. At first sight the plaintiff's counsel says, this case appears unhelpful to the plaintiff, but it was submitted that there are important differences between the facts in Moa and in the present case.

In Moa, the appellant - a resident of the United States - had been successful in the Land Court to the extent of having obtained cancellation of a grant made to the first respondent. He was unsuccessful in the Land Court in having the disputed land instead registered to himself. - He appealed the Land Court's refusal to register him, to the Court of Appeal. One of the arguments made in the appeal was that the appellant was resident in the United States, and was therefore not entitled to be registered.

It was submitted that for a number of reasons, Moa can be distinguished from the facts in the present case.

Firstly, the plaintiff in the present case is already registered as the allotment holder. Although the case has been brought by the plaintiff that is only because the defendants have refused to recognize the registration in his name, and they refuse to leave the land. Therefore it was submitted, it was appropriate to return to the principles set out above.

Secondly, and arguably more importantly, it was submitted that whereas in Moa the appellant had effectively abandoned Tonga for the United States, the plaintiff in the instant case has retained close ties to Tonga because he returns to the Kingdom often.

The plaintiff had also been careful to have his customary obligations to his Noble complied with by his relatives whenever he is not in Tonga. Evidence was also adduced in this case that when the present Fakafanua visited the United States with his father, the late Tuotasi Fakafanua, the plaintiff picked them up from the airport he drove them around and he took care of them. Evidence was also led whenever the plaintiff is in Tonga; he has personally discharged his customary obligations. The present Fakafanua also confirmed in his evidence the plaintiff's claims with regard to his visit to the United States, when he accompanied his late father he also confirmed the plaintiff had discharged his cultural obligations following the death. It was submitted by counsel that as a result the plaintiff is in a very different position from the appellant in Moa of whom the Court observed:-

"...there is no evidence in the Appeal Book which would establish that whilst in the United States the appellant maintained any connection with Tonga, other than recognition of it as his place of birth and as the place to which he hopes ultimately to return.

It was also submitted by the plaintiff it was clear from the evidence that in stark contrast to the plaintiff in this case, the second defendant, despite her living on the estate, has not discharged any of her obligations to the present Fakafanua; indeed the evidence of both the second defendant and the present Fakafanua was that they had never even met prior to this case. However this was denied by the defendant.

Thirdly, it is clear from Moa that Tongan law does not differ from English law on the issue of residence, and in English law it is quite clearly established that a man can have more than one residence. In Moa the Court accepted that submissions made by counsel for the Minister of Lands correctly stated the law as to residence and the Judgment of Morling J adopts the submissions and it refers to cases presumably cited in them. His Honour cited with approval; Levene v. Inland Revenue Commissioners [1928] UKHL 1; (1928) All ER 746 at 749 (H.L.)

"...But a man may reside in more than one place. Just as a man may have two homes - one in London and one in the country - so he may have a home abroad and a home in the United Kingdom, and in that case he is held to be a resident of both places."

It was submitted that the plaintiff in the present case is a person such as referred to in Levene - he is a resident of both the United States and Tonga. The plaintiff has never renounced his Tongan citizenship, and he returns to his homeland regularly. There was nothing in the evidence to contradict his claims to have made approaches to three successive holders of the Fakafanua title for registration of certain land within the estate in which he was born; land to which he has strong blood ties, albeit they are not ties recognized by the law of succession.

It was accepted that the late Fakafanua's alleged promise to the plaintiff cannot in itself create a cause of action, but it was also submitted that equally there is no evidence to contradict the plaintiff's claim to his ongoing efforts; or to have the land registered in his name based on that promise made to him.

It was said by the plaintiff that the precise nature of the defendants' claim remained somewhat unclear by the time the evidence was concluded. The first defendant gave no evidence because it was said he was abroad. In her evidence the second defendant conceded that she could never be registered as the holder of the allotment because she was a female. In that regard, it was submitted that even if the Court was minded to consider whether the laws of succession excluding women remain valid, this is not a case where any discussion of that issue is appropriate.

The plaintiff says the second defendant - regardless of her sex - could never succeed to the land because she had no blood connection to the land. She is no more than the foster child of a woman - who once held an unmarried daughter's life interest. The second defendant said at various points in her evidence that while she could not become the registered holder of the allotment, her son could and he should be entitled to be registered as the allotment holder.

In her evidence in chief the second defendant was asked why she went to see the late Fakafanua sometime after her marriage - the exact or even approximate date of that meeting was entirely unclear on the evidence, although the pleadings say the meeting was in 1990.

• Her answer was-- "to apply for the allotment, and to register it".

Her counsel pointed out that because she was a woman she could not have an allotment. In reply the witness said that she wanted to register the Land in her son's name. In reply to a question from the bench, the witness stated that her son was only one year old- at that time. The second defendant admitted in cross examination that she was aware that her son could not be registered as the holder of an allotment until he was 16. When asked why she did not encourage or have her son make an application on the day he turned 16, the plaintiff says the witness was evasive.

Although the second defendant admitted she knew where the Ministry of Lands was, and also that she knew application forms for allotments were to be obtained from them, neither she nor her son had, at any time prior to the court hearing, taken any steps to make an application for registration of any land.

The plaintiff says the witness repeatedly made reference to her supposed rights to the land in question "through my son not through me." Although she claimed to have been granted the right to live on the land by the late Fakafanua at a meeting she attended after her marriage, she nevertheless felt the need to approach the late Tuotasi Fakafanua - the father of the Present Fakafanua - "to be certain of this allotment because her son was almost of legal age."

It was submitted by the plaintiff that this evidence was quite inconsistent with a claim based on an alleged promise by the late Fakafanua. If the witness the second defendant had been given a promise that she could "go and live on the land - no-one will disturb you", why did she have a need to approach Tuotasi Fakafanua, because her son was almost of legal age? If the second defendant thought she had a valid claim through her son - as she claims - why did she not ensure that her son beat a path to the Ministry of Lands the day he turned 16? Why, two years after her son's sixteenth birthday, has he not made a claim?

It was also said while the defendants' son may well have a claim to an allotment in Ma'ufanga, he has no claim to the allotment in question, and the second defendant knew it. Because the second defendant admitted that she had no legal claim. It was submitted that her only possible claim is an equitable claim, based on her long residence on the land amounting to prescription.

The true nature of the defendants claim

It was submitted by the plaintiff that the best that can be said about the defendants' claim to the land is that they were granted a licence to occupy the land by the late Fakafanua at some uncertain date in the past. At the worst, the defendants are mere squatters with no right to be on the land at all.

Given that the second defendant cannot make any claim for registration herself, and that given that neither her son nor the first defendant have made a claim to be registered holders, the defendants' only possible claim must be in the nature of an estoppel- created by an alleged promise made by the present Fakafanua's grandfather, which promise created some sort of licence to occupy the land. If the court accepted that such a promise was made, and that a licence was created, it was submitted that the only thing which can be said about it is that its terms were entirely unclear. There was no evidence adduced - and to be fair no claim - that there is or ever was, anything in writing which went and supported the existence of the alleged promise.

In her evidence, the second defendant said with regard to the meeting she had with Fakafanua's Grandfather that:

"His answer was go and live on the allotment and no-one will come and remove you...I am the owner of the estate."

Under cross examination the following exchange occurred:

Q: Old Fakafanua said "go and live there, no-one will disturb you"?

A: Yes

Q: Did he say 'go and build a house on the land?

A: No, he didn't say that

It is common ground that when the second defendant went to live on the land as a child, and the only building on the land was the old wooden residence built very close to the road boundary which building remains there today. It is also common ground that some time after their marriage, the defendants built the larger residence at the rear of the property.

The first question therefore should be "Under what authority if any did the defendants build that dwelling?" The next question arising from the first is "did building that dwelling give the defendants any greater right to the land?" it was submitted that the evidence of the meeting between Fakafanua's Grandfather and the defendants - if in fact that meeting took place at all - is very unsatisfactory.

This Court has, in the recent case of Veikune v. Tu'iha'atehio LA10/2005 (unreported) noted that while the court has adopted a rather generous approach to the exceptions to the hearsay rule, the plaintiff says double hearsay is an example of "the worse kind of hearsay evidence."

They say the only persons available to give evidence as to what transpired at the alleged meeting are the defendants themselves, and Kamilo, who appears to have known a Matapule called Makaui - who is now deceased - and who allegedly attended a meeting and later told Kamilo about the meeting. With respect to him, the plaintiff's say that Kamilo's evidence was - at best - double hearsay from 20 or more years ago. It is evidence of what Makaui and the second defendant told him of what was said at the meeting. While the witness claimed at one point that his memory was clear, it was suggested it was obvious the witness did not have any clear idea of when the alleged meeting took place also his evidence completely contradicted that of the second defendant.

The first defendant did not give evidence. He is apparently an overstayer in New Zealand, and the second defendant claimed that neither she, nor any of her children had had any contact with him for quite some time.

The second defendant conceded that the first defendant's evidence as to what took place at the meeting with the Fakafanua's grandfather would have been very helpful, but she also claimed to have no knowledge of his whereabouts. The witness Kamilo however told a different story. He said that he had been told by one of the defendants' children that he - the child - had been in contact with his father "about one week ago." It was suggested that this is but one, of many areas in which the second defendant's evidence was less than credible.

It was suggested by the plaintiff that putting the best possible construction on what was granted to the defendants by the current Fakafanua's Grandfather — was a bare licence to occupy the land, and to occupy the land until such time as the Fakafanua should see fit to grant the allotment to some properly entitled person. It was further strongly suggested by the plaintiff that any licence to occupy the land, has now been terminated by the present Fakafanua- by the grant of the land to the plaintiff.

The Rights of a Licence Holder as against the registered holder

The defendants' claim to be lawful occupiers of the land is based solely on their occupation of the land for a period of 18 + years. The second defendant says their occupation is based upon a promise by the present Fakafanua's Grandfather, but the only evidence of that alleged promise is the oral evidence of the second defendant, and also the double hearsay- oral evidence of the witness Kamilo.

It was suggested by the plaintiff that it was significant that both in the pleadings (paragraph. 19 of the counterclaim) and in her evidence the second defendant only claims that the promise was to allow her and her husband to occupy the allotment. At the time the alleged promise was made, there was an old house on the allotment, a house which had been there since the last lawful landholder built it, which was sometime prior to his death in 1942.

It was suggested that allowing someone to occupy land on a licence - whatever its terms might be - is a very different thing from allowing someone to build on the land and build a new and much larger dwelling. Although in paragraph 20 of the counterclaim the defendants say they built this house "in pursuance of what the Fakafanua had told them..." it was submitted that the second defendant's own evidence on this point does not support the claim that the licence - if there was one - ever allowed the defendants to build a house.

It was suggested by the plaintiff that the court may take judicial notice of two things:

1.1.3. The original house - now apparently unoccupied - is built on the road boundary;
1.1.4. The new house built by the defendants is at the rear and is hard up against the rear of the allotment.

The plaintiff argued; that if the defendants truly believed they had the right:- not only to occupy the land, but also to build on the land, why not demolish the derelict old house and build the new house somewhere - in the middle of the allotment - or even partially over the site of the old house?

The plaintiff says the evidence of the current Fakafanua was that he had never met the defendants, and this was confirmed by Malia, who agreed that prior to the case she had never met the Fakafanua. More importantly, the Fakafanua said that to the best of his knowledge, neither of the defendants had performed their customary obligations after his, the Fakafanua's father passed away but the defendants dispute this.

It was also suggested by the plaintiff that it is open to the court to find on the evidence that while a licence to occupy the allotment and the dwelling already on it - may have been given by the Present Fakafanua's Grandfather, the defendants conduct since building their house- suggests that they were well aware that they had no right to build their new house: - and they were effectively, "keeping their heads down" in the hope that they would be overlooked. It was also suggested by the plaintiff that it is significant that at no time did either the first defendant or his son ever apply to register the allotment formally. They ask why not?

Although it appears he had no ancestral ties to the area, the first defendant was certainly resident in and on the property - and therefore within the estate of Ma'ufanga - since at least 1990. As a male Tongan the first defendant would have been perfectly entitled to apply for a grant. The plaintiff also asks why the defendant's son had not applied to register the land the day he turned 16. They argue the son was presumably born within the estate, so arguably the son had a better claim than his father.

In her evidence the second defendant repeatedly said that while she understood, she herself had no legal claim to the land, her son did. The second defendant referred to a meeting she allegedly had with the present Fakafanua's late father prior to this death. When asked by her counsel why she went to see the then Fakafanua, she said "because I have a son and I wanted to register the land in his name".

The plaintiff questioned why nothing happened after that meeting, which must have occurred more than five years ago, since the then Fakafanua died in 2004. It was suggested by the plaintiffs, that the lack of action by either of the qualified males in the defendant's family suggested that the defendants knew that whatever rights they had were temporary only, and sooner or later they would be required to leave when some other person - with blood ties made a claim on the allotment.

Issue made by mistake or incorrect principles?

In paragraph 24 of their defence the defendants suggest two alternative grounds - for the cancellation of the registration:

1.1.5. That either the Fakafanua or the Minister of Lands (or both) were unaware that the land was occupied by the defendants; or
1.1.6. The Minister was aware of the defendants' occupation, but notwithstanding that knowledge he granted the registration on a wrong principle, namely that is was not "available" due to being occupied.

It was said by the plaintiff that the evidence suggests that neither of these scenarios is supported by the evidence. The plaintiff says - and the present Fakafanua confirmed - that the plaintiff informed both the Fakafanua and the Minister of Land the defendants were occupying the land, and he further explained who they were; and the basis of their claim. What the plaintiff says is correct - other than the repeated assertion that the second defendant's son was entitled to be registered; no alternative basis of claim other than occupation was pursued.

The plaintiff says it is clear from the meetings arranged with the Minister of Lands on 22 and 23 October 2007 - which the defendant admits occurred but she did not attend - that the Minister of Lands was well aware of the competing claims to the allotment. At that time both the Minister of Lands and the Fakafanua were prepared to grant an alternative allotment to the defendants, but they refused the grant.

The plaintiff says there is no evidence to support any assertion that the plaintiff acted in any way underhandedly, or he concealed any information. He made his case to his Noble - disclosing the defendants' occupation of the land - and the Fakafanua was persuaded that the plaintiff ought to be granted the allotment. The Fakafanua was clear in his evidence that being in possession of all of the facts; he remained of the view that the plaintiff had the better claim in Tongan custom to the Land than the defendants.

The plaintiff says it is clear that the Minister of Lands also knew all the facts at the meetings on 22 and 23 October 2007 - the defendants admit both that the meetings took place, and that the plaintiffs then counsel wrote to both the Minister of Lands and the defendants counsel shortly after the meetings occurred recording the outcome of them. The plaintiff says it is beyond argument that despite knowing the full facts, and the basis of the defendants' claim, the Minister of Lands declined to cancel the registration. He is apparently said to have said "he would let the Land court, sort it out."

In responding to a general remark from the bench, the court asked why the Minister of Lands was not joined to the action by either of the parties. From the plaintiff's side, the answer is he did not need to; he maintains that he is lawfully registered as the holder of the land, and that he fully disclosed all facts when he applied for this allotment.

It was submitted by the plaintiff that perhaps the reason the defendants did not join the Minister - (who would have been their best source of compensation if the case went against them) - is simply that they and their counsel were aware of the weakness of their claim, and that the Hon Minister has a wide discretion in such matters - Moa (supra. At page 33).

THERE IS NO REASON TO OVERTURN the presumption in favour of registration.

It was submitted by the plaintiff that there was nothing in the evidence before the court which justifies interfering with the principle stated by the Court of Appeal and Privy Council in Moa, and Havea (supra.) namely that the Court should only interfere where it is clear that the Minister has acted contrary to statute or in breach of natural justice.

With regard to the statutory argument, they say the only possible ground for challenge is that because the plaintiff is primarily resident in the United States, he may be disbarred by s.50 (a) of the Land Act. That argument was answered comprehensively by the Court of Appeal affirmation in Moa (supra. At page 34) and it was affirmed that a person may be resident in two different countries.

As to the natural justice argument, it was submitted that this has even less weight. The Minister had not one but two meetings with the parties. Although the second defendant did not attend one of them, she was represented by her then counsel. The plaintiff says there can be no argument that the defendants did not receive a fair hearing. The Court asks and queries. "Were the parties on an equal footing, per Minister, Noble, and Commoner?

The plaintiff argues having heard the defendants' grounds for seeking to cancel the registration, the Minister declined, but he offered the defendants an alternative allotment.

The plaintiff says the old saying goes "you can't be fairer than that". However the plaintiff says the defendants declined the offer. It was strongly submitted by the plaintiff that there was no reason for the land court to intervene and or overturn the decision of the Minister, and the plaintiff is entitled to the necessary orders to give effect to his prayer for relief set out in his Statement of Claim.

DEFENCE COUNSEL - made the following submissions on behalf of the defendants:

The lawful residence of the defendant's on the land in question.

The evidence revealed Kelemete had lawfully resided on this allotment the land with his wife, Asi, and his daughter, Tuva'itai. That was because -

(a) The previous estate holder, the late Fakafanua, had agreed that they could reside on the allotment, quite independently
(b) There was a lawful grant of the allotment to him - by the Minister of Lands.

An estate holder has the right to allow persons, to whom the Minister of Lands has not granted an allotment, to reside lawfully on lands of his estate. That right the defendants say is implied in the following provisions of the Land Act:

Section- 8 LA. Subject to the provisions of this Act relating to surrender, the grant, if the applicant be lawfully residing on an hereditary estate, shall be made from the lands in such hereditary estate ....."
(Underline added)
Section 35. (1)
Nothing contained hereof shall be deemed or construed as prohibiting any holder of an hereditary estate from refusing permission to take up residence on his hereditary estate to any person who belongs to another locality or holds a tax allotment elsewhere - even though the wife of such person belongs to a village - upon such holder's estate.
(2) Any such person coming to reside on an estate may be ordered in writing by the holder to leave, and if that person refuses or fails to obey such order within 7 days ..... " (Underline added)

Section- 50.

Land for allotments shall be taken from the hereditary estates in accordance with the following rules —

(a) an applicant for an allotment lawfully resident in an hereditary estate shall have his allotments out of land available for allotments in that estate;" (Underline added)

By customary adoption, Tuva'itai fostered the second defendant as her daughter in 1966 when the second defendant was only 2 months old. She raised and brought up the second defendant on the allotment of her parents, Kelemete and Asi. When her mother remarried after her father died, she became the lawful holder of the allotment as an unmarried daughter (there being no heir to the allotment) It is clear by the evidence the second defendant was raised and she grew up - and lived all her life on this particular allotment - the land.

When Tuva'itai died in 1977, the allotment lawfully reverted to the Fakafanua, but the second defendant continued to live on the allotment with her father who looked after her. When her father died in 1907, her uncle, Kamilo Palu, looked after her. In 1989, the second defendant lawfully married the first defendant they then continued to live on the allotment. Their first born child was a boy.

The court was told in 1990, the first defendant, the second defendant and a Matapule, Makaui, at the request of Kamilo, went to the Fakafanua - in the customary Tongan way with cooked pig and food and they asked for the allotment the land.

• The Fakafanua agreed and told them to go and live on the allotment in peace and that no one would take it front them, or would disturb them on the land.

The defendants argue that was the first time the Fakafanua, the estate holder, personally allowed the second defendant to reside on the allotment and that right was also extended to her husband, the first defendant at the same time.

The defendants argue that permission was lawfully granted by the then Fakafanua- in accordance with his right to give such permission - as shown in the relevant sections of the Land Act - so from then on, the defendants lived on the allotment lawfully, even though the allotment had not been granted or registered by the Minister of Lands to either defendant. Importantly that permission was granted in 1990- some nineteen years ago.

The defendants argue that evidence of lawful permission and lawful occupation of the land is the fact that no one, not even the Fakafanua, attempted to disturb the defendants on this allotment the land for 19 years.

Accordingly, the defendants argue they were lawfully residing in and on the land and they were in lawful occupation of the allotment on the 11th July 2007, which was the day when the Minister of Lands purported to grant and to register the allotment - the land into the plaintiff's name.

• The defendants therefore argue the grant and the registration of the allotment in the plaintiff's name- was unlawful

The defendants argue the occupation of the allotment by the defendants was substantial-because they not only fenced the land they kept, but they also maintained the allotment and they had brought up their nine children on the land. They argue they built a fairly substantial dwelling house, and a carport on it, according to their means. They spent approximately $30,000, on the house in 2002. They argue that during their occupation of the land they never abandoned the land- or left the land unattended at any time.

The defendants also argue that any person who visited the land or who had a duty to make enquiries at the quo, would have known the defendants were the occupiers and that they were still in occupation of the land on the 11 July 2007, which was the date of the registration of the land to the plaintiff, by the Minister of Land.

The defendants say there was no evidence that when the Minister granted and registered the land in the plaintiff's name, that he, the Minister, was personally aware of the defendants' occupation of the land. The defendants argue- NEITHER the plaintiff nor the Fakafanua said in their evidence that the Minister was aware, or that they informed the Minister of that fact.

The defendants say it would seem that the parties did not inform the Minister because had they had done so; the Minister might not have granted and or registered the land to the plaintiff using his wide discretion.

The defendants argue it does not matter whether or not the Minister was aware, because the fact is they say the Minister went and made a grant of the land to the plaintiff - whilst the land was lawfully occupied - and thus the land was therefore NOT AVAILABLE AS A GRANT.

As quoted- S.50 d the Land Act provides:

"50. Land for allotments shall be taken from the hereditary estates in accordance with the following rules -
(d) An applicant for an allotment lawfully resident in a hereditary estate shall have his allotments out of land available for allotments in that estate,"
(Underline added)

The defendants argue per the case of Inoke Tafa v. Siope Viau, Sinitalela Viau and Minister of Lands (unreported) Appeal case no. 3/2006 - the facts were similar to the present case although the allotment in question was on Crown land. In their decision, the Court of Appeal quoted s.7 of the Land Act - which provides:

"7. Every male Tonga subject by birth upon making application on the prescribed form to the Minister of Lands shall be entitled to receive subject to the provisions of this Act a grant of land not exceeding 3.3387 hectares as a tax allotment and where any such grant is less than 3.3387 hectares the Minister may from time to time as land becomes available ... make further grants ... until the area granted ... has a total area of 3.3387 hectares. He shall also be entitled to receive on making application as aforesaid and subject to the provisions of this Act a grant ... in a town as a town allotment." (Underlining were the emphasis of the Court of Appeal)
After also quoting s.43 and s.50 of the Land Act, the Court of Appeal stated at page 8 of the judgment
"Repeatedly, in the provisions we have cited, reference is made to the question whether a piece of land is "available" to be granted. The scheme, as a whole, seems to us to make availability as an essential requirement before a grant can be made. Therefore the discretion conferred on the Minister, in the case of Crown Land, under S.50 (e) must take account of availability, as is indeed clearly implied by the words "where possible".
This view will be reinforced if regard is had: - to the "prescribed form" referred to in ss.7 and 43. That form appears as Form 9 at S-3 and 4 of the Land Act and subsidiary legislation related to it in the "Red Statutes". Immediately under the place for the signature of the applicant, there appears on the form the following:

• "I hereby agree to the grant of the allotment as described above and declare that there is no impediment to this grant.

Signature of Tofi'a Holder"

If the land were not available that would clearly be an "impediment". The Tofi'a Holder, of course, as is made clear by S.5 is the estate holder, and in the case of Crown land, the appropriate signature is that of the Minister ...."

In that case- the Court of Appeal held that

"... In the circumstances of this case, reasonable steps were not taken by or on behalf of the Minister to acquaint him with the relevant information, so that a most material factor, the occupation of the land by the respondents together with the erection of a house on it, was not taken into account. The appeal must therefore be dismissed ...." (Underlining added)

SUMMARY

The defendants argue the estate holder (the present Fakafanua) in July 2007 signed various prescribed Land Forms granting the disputed parcel of land to the plaintiff in this suit. At the same time the estate holder signed documents to the effect there was no impediment to the grant of the land to the plaintiff.

The documentation was accepted by the Land Minister and a grant of land ensued in favour of the plaintiff when the land was registered in the plaintiffs name in July 2007, the defendants still occupy the land and refuse to move.

The assertion, there was no impediment to the grant of land to the plaintiff was plainly wrong; because the evidence revealed the land was at the time of its Registration, lawfully occupied by the first and the second defendant's and their family.

The defendants argue the lawful occupation of the land by the first and the second defendant's (and their family) were material factors which should have been fully considered by both the estate holder and the Land Minister prior to the registration of the land, to another.

The defendants argue their lawful occupation of the land became an impediment to the grant of the land towards - any other person. The defendants argue the Land Minister was either not aware of the impediment to the grant - at the time he made the grant; or, he might have even have been misled.

In the Inoke Tafa case the Land Court held that the grant and the registration by the Minister of the allotment in that case was unlawful and ordered it to be cancelled. The Court of Appeal- upheld those orders. The defendants argue for the same orders, and say the orders should be granted for the same reasons.

ACCORDINGLY

Upon hearing the evidence in this case and, having considering the written arguments submitted by counsel for both parties in this suit, the court has come to the following conclusions:-

• The Land Court cannot be completely satisfied that the Minister of Lands when he received and registered the plaintiff's application for the registration of the land in July 2007, that the Minister of Land had proper knowledge the parcel of land was already occupied by long time residents of the estate- residents of 19+ years standing
• Because the testimony given on oath in court revealed at the time of registration on the 11th July 2007, the land was lawfully occupied: - this is and it must be an impediment to the grant of the land to another person.
• More importantly in the Land Courts view applying rules of natural justice - the land was occupied by a family who were lawfully resident on the land - and who had occupied that land for over NINETEEN YEARS - without let or hindrance.
• On the evidence before it the Land Court must conclude either the present Fakafanua, or the Minister of Lands (or both) were unaware the land was lawfully occupied by the defendants and their family; or; more likely than not that the Land Minister was unaware of the defendants' long standing occupation of the parcel of land for 19+ years.
• Notwithstanding that, knowledge (or not) - the Land Minister went on and granted registration of the land to the plaintiff on 11th July 2007 on a wrong principle, namely that the land was available" when clearly it was not - due to the land being lawfully occupied by the defendants.
• Evidence adduced in the Land Court; reveals the defendant occupiers - were hard working persons, with long standing tenure rights i.e. 19 + years. They were people who had never left or abandoned the land. They had properly maintained and improved the land. The court accepts their evidence, as being long term occupants.
• The evidence revealed the defendants were from day one living on the land- as lawful residents- residing in peace under what they genuinely believed to be a firm promise, from a previous estate holders - QUOTE "that they would not or never be disturbed." In today's society much can be said, and much can be inferred by the adage that "a man's word should be his bond." (my emphasis ALWAYS be his bond)
• Having observed the witnesses - who gave evidence in court - the court must conclude that had the Hon Land Minister known all the facts; and had the Land Minister (or his servants or agents) taken time to visit the locus in quo, then the court might reasonably conclude the Land Minister might well have used or he might well have exercised his wide discretion on whether to grant the land - in another way - perhaps applying the rules of natural justice in a different manner.
• The court concludes, if that were to be the case, and in possession of all the facts - then the Land Minister might well have used his wide discretion, and have refused to register the land in the plaintiff's name.
• The court concludes if the Minister had refused the grant to the plaintiff at that time then the plaintiff might well have been allocated another allotment by the Noble when he decided he wished to return to Tonga from living in the USA.
• The court concludes if the Land Minister - had became aware of the first and second defendants long term occupation of the land, or been informed of same, then the Land Minister - (or in his absence his Deputy - or a Senior Member of staff) OUGHT to have arranged to visit the land in question; and, on finding evidence of any persons in occupation; then the Hon Land Minister should have arranged to interview the occupants and; make all necessary enquiries of them before he REGISTERED the land
• The court concludes if the Land Minister had made the necessary enquires, and if he had interviewed any of the present occupiers - then the Court takes into account, the Land Minister might well have taken into account the defendant's claim / or / promise on the part of the past Tof'ia holders - that the defendant's could lawfully occupy the land - and that no one would disturb them." Per rules of natural justice and the Minister might well have come to a different conclusion regarding registration, rather than say we will leave it to the land Court.
• Because both the Land Minister and the Land Court MUST be satisfied with the answer to this question as per the Act. "Was the actual piece of land available for grant" from the testimony this court is obliged to find as a fact - the parcel of land was clearly not available for grant to another. That was and that clearly is - and will always remain - an impediment to the grant of this piece of land - to any other person.
• The Land Court remains concerned to hear evidence that -neither the Hon Minister of Land- nor the Tof'ia holder visited the piece of land (at any time) before granting and registering the land to the plaintiff. The court asks does this -tend to shows a partial disregard for the rights of these long standing occupiers of the land? It is certain the occupation of the land by the defendants at the time of registration is as the Act says, and the Court quotes is "A MOST MATERIAL FACT
• On the evidence before it- the Land Court cannot be satisfied the Hon Land Minister took into account, and, or applied the rules of natural justice to the facts of this case - when on the 11th July 2007 the Land Minister went and registered the land in the plaintiff favour.
• The Land Court agrees with the defendants submission and it has considered and applied in particular the case of Inoke Tafa v. Siope Viau, Sinitalela Viau and Minister of Lands (unreported) Appeal case no. 3/2006- where the Court of Appeal held that "... In the circumstances of this case, reasonable steps were not taken by or on behalf of the Minister - to acquaint himself with the relevant information, so that a most material factor, the occupation of the land by the respondents together with the erection of a house on it, was not taken into account.

The Land Court accepts the defendant's argument, the estate holder (the Tof'ia) - signed the prescribed forms to the effect that there was no impediment to the grant of land to the plaintiff - and that assertion was clearly very wrong:-

That assertion was very clearly wrong, because the land was occupied by the first and second defendants and their family, Per Inoke Tafa-, also the defendant family, had spent a considerable amount of money and had erected a fairly substantial dwelling house on the property, moreover most importantly they were very long term residents of the estate. That said, it was and always will be a most material factor, which the Hon Minister of Lands ought to have been aware from making his own enquiries AND HE MUST have been made aware of by (1) the estate holder and(2) the plaintiff.

The defendants rightly say there was a material impediment to the grant, and the registration of the land on the 11th July 2007- to the plaintiff and the Land Court fully agrees with that assertion.

TO AVOID FUTURE PROBLEMS

To avoid future problems such as in this case, it should be the duty of officials in the Land Department- to physically check upon the following:-

(1) the truthfulness and

(2) the accuracy of

(3) each and

(4) every single application

(5) for the registration and or

(6) the grant of land;

(7) to ensure

(8) land is available land for grant-

(9) As per the Act.

In the Land Courts view the Minister for Land, and his deputy or agents- of necessity has the duty to physically inspect each and every parcel of land prior to the granting and or registration of a parcel of land, this is particularly so, whenever a Minister / Deputy /or Public Servant is asked to use his or her- WIDE DISCRETIONARY POWERS- because whenever.

• A discretion which if used or is applied incorrectly or,
• As a result of an incorrect or untrue statement -
• Might well act to another person's detriment,
• Might cause another party unnecessary expense or,
• Cause embarrassment financial loss or adduce - allegations of corruption or
• Result in unnecessary and expensive, and protracted court proceedings
• It denies people justice

BECAUSE

A court will upset a grant only if a person challenging its validity, establishes that the Minister has acted on wrong principles- which means that the Minister has acted contrary to statute or in breach of the rules of natural justice, or in breach of a clear promise by the Minister, and, or the tof'ia is holder"

ACCORDINGLY

• The Land Court cannot be fully satisfied the Land Minister when he acted on information he received in July 2007, that the Minister was fully briefed, or, that he was made fully aware of all the facts of this case. (that is to say he was fully briefed by the plaintiff, the estate holder AND the defendants)
• The Land Court cannot be satisfied the Land Minister was at the material time provided with all, or, sufficient material to properly enable him to take into account, all the information for him to properly consider and apply the rules of natural justice- to this case.
• The Land Court cannot be fully satisfied the Minister of Land considered the case both for the plaintiff, the estate holder and the defendants, who were all long term occupiers of the land, when the Minister came to decide on the Registration and grant of this parcel of land to the plaintiff, on or around the 11th July 2007.
• The Land Court says the evidence clearly reveals, that on the 11th July 2007 there was a clear impediment to the grant of the land to the plaintiff, because the land was lawfully occupied by the defendants and they were lawful tenants of long standing tenure of 19+ years - ensconced at the behest and the acquiescence of previous estate holders
• The Land Court can come to no other conclusion - it finds as a fact that there was an impediment to the grant of the land to the plaintiff and as such the Court finds as a fact that the grant of land to the plaintiff by the Minister of Land, on 11th July 2007 was UNLAWFUL.
• The Court orders the grant of the registration of the land to the plaintiff, made on the 11th July 2007- by the Hon Minister of Land - TO BE CANCELLED
• The defendants are awarded their costs to be taxed by the Chief Registrar if not agreed.

SHUSTER J
JUDGE OF THE LAND COURT