'Eli v Lisiate [2011] TOLC 5; LA21 of 2010 (16 November 2011)

IN THE LAND COURT OF TONGA
NUKU'ALOFA REGISTRY

LA 21 of 2010

BETWEEN:

1. MELE 'ELI
2. VIKA HUI
3. TAPA'ATOUTAI 'ELI
Plaintiffs

AND:

LAUTAIMI LISIATE
Defendant

AND:

'AIVENIHOU LISIATE
Third Party

BEFORE THE PRESIDENT AND MR ASSESSOR BLAKE

Mr C. Edwards for the Plaintiff.
Mr L.M. Niu for the Defendant and the Third Party.

JUDGMENT

INTRODUCTION

[1] The issue in this case is the rightful ownership of two adjoining tax allotments at Ha'ateiho (the Ha'ateiho Land). The first piece of land has been occupied by the first plaintiff since at least 1998. She is the widow of Naulala 'Eli in whose name it was registered on 26 August 2010. The second piece of land has been occupied by the third plaintiff since about 1999. It was registered in the third plaintiff's name on 30 June 2010. The second plaintiff is the first plaintiff's daughter.

[2] During the months of April to August 2010 the defendant entered the lands in question, cleared them and planted his own crops.

[3] The first and third plaintiffs, who rely on the registration of the allotments in their names, seek orders expelling the defendant and compensation for loss of crops and damage. The defendant's case is that he has planted on the allotments with the third party's permission while the third party's case is that he is the rightful owner of the two pieces of land which he says were wrongly registered in the names of the husband of the first plaintiff and the third plaintiff by the Minister of Lands in 2010.

CENTRAL ISSUES

[4] On the morning of the trial a memorandum was filed by Mr Edwards. He suggested that the fundamental question before the Court was whether the Ha'ateiho land, which was subsequently divided and granted to the first and third plaintiffs, had in fact been registered in the name of the third party's and the defendant's father Siuaki Lisiate (Siuaki) in 1963. If it had, then, following the death of Siuaki's father's widow in September 1984 it was open to Siuaki, under the provisions of Section 84 of the Land Act (the Act) to elect between the Ha'ateiho land and his father's land Kauvai. If he had validly elected Kauvai, then, under the provisions of Section 82, the surrendered land Ha'ateiho would have devolved on the third party as Siuaki's heir and would not have been available for grant to or occupation by the plaintiffs. On the contrary, the third party would have every right to allow the defendant to cultivate and occupy it.

[5] Mr Niu did not disagree with this analysis of the principal issues and agreed to present his case first. In addition to the issues identified by Mr Edwards, however, he suggested that the defendant and the third party had acquired rights to the land by occupation. It will be convenient to deal with that submission later.

THE EVIDENCE

[6] Only two witnesses were called. The first was Sione Fonua Uele, a land office assistant. He produced a copy (Exhibit D1) of page 14 of a register of allotments 'Api Tukuhau at Ha'ateiho. Item 80 states that the Ha'ateiho land was registered in the name of Sione Siuaki 'Eli (aka Siuaki Lisiate) on 6 June 1963.

[7] Mr Uele also drew the Court's attention to reference 147/46 in the same entry, which indicates that "the heir has moved to" Tatakamotonga. This, the Court was told, by further reference to other documents which were available, but not produced or disputed, revealed that on 3 September 1985 the land Kauvai (the Tatakamotonga land) had been inherited by Siuaki. This land is the land which had been registered in Siuaki's father's name and which his mother Vika Tupou had been occupying as his widow until her death in September 1984. This evidence was consistent with documents P26 and P27 which are an affidavit by Siuaki's brother on his behalf dated 4 April 1985, claiming to be the heir to Kauvai following the death of Vika the previous September.

[8] Unfortunately, a copy of the deed of grant of Kauvai was not produced, however it is an accepted fact that it was dated 6 May 1985. (See third party notice dated 29 October 2010).

[9] Mr Uele also produced as Exhibit D2 a deed of grant in respect of the Ha'ateiho land (also called Fine'ehe). This document states that the land was granted to Siuaki on either 12 or 22 June 1995. It is not disputed that the signature upon this document is that of Fielakepa, the Minister of Lands who held office in 1995 are not that of Fonua who was Minister in 1963.

[10] The second witness was Paula Moala who was called by Mr Edwards. This witness told the Court that he had handled the 1997 applications which were approved by the Minister in that year but which were not formalized by deeds of grant to the applicants (by which time the first applicant had in fact died) until 2010 (Documents P7 to P13).

[11] In cross-examination, Moala told the Court that in submitting the 1997 applications to the Minister (documents P2 & P15) he had forgotten to disclose that the person "who last registered" the Ha'ateiho land was Siuaki. He admitted that this was a material error on the application. He also explained that his statement that the allotment "has no name on it" was referring to the fetongi lisi "exchanged list" in exhibit D1, not to a map of the allotment kept in the Registry.

[12] After hearing the evidence and preliminary submissions from counsel three questions were identified as requiring answers to the central issues before the Court. These were:

(1) Whether Siuaki became the registered owner of the Ha'ateiho land either in 1963 or in 1995.

(2) The consequences, if any, of the third party's failure to apply for the registration of the Ha'ateiho land in his name.

(3) The consequences, if any, of not joining the Minister as a party to the proceedings.

[13] Before addressing these questions individually it will be borne in mind
that in a case such as this, where the cancellation of a grant is sought:-

(a) There is a rebuttable presumption that the registration was validly made (Ongolea v Finau [2003] To. L.R. 147, 151);

(b) The Court will only overturn a grant if the person challenging the grant establishes 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; (Hausia v Vaka'uta & Anor. [1974-1980] To. L.R. 58; and

(c) That the burden of proof is upon the challenger to produce sufficient evidence to establish that the Minister had indeed breached one or more of these principles (Hausia).

Did Siuaki become the registered owner of the Ha'ateiho land either in 1963 or in 1995?

[14] As has been seen, witness Uele produced a register of allotments at Ha'ateiho which at item 80 stated that the land had been registered in Siuaki's name in 1963. The deed of grant is, however, dated 1995.

[15] In my opinion the situation is similar to that in Vaka'uta v Vaka'uta & Anor [1974-1980] To L.R 26 in which an "entry in a book" produced by the Ministry of Lands was said to establish title. Rejecting this claim, the Court cited Folau Tokotaha v Deputy Minister of Lands & Anor [1923-1962] To. L.R 159 in which the Privy Council held that:

"For the title of an allotment holder to be complete it is necessary for him to be issued with a deed of grant and for that deed of grant to be registered" and that:

"It is clear that formal registration consists of the registration of the deed of grant. Registration is not complete until the deed of grant is prepared and a duplicate signed by the Minister and handed to the applicant and the original registered and bound up. Since no deed of grant was ever issued to the Plaintiff in this case the 'registration' was informal and incomplete".

[16] In my opinion Siuaki did not become the registered owner of the Ha'ateiho land at any time prior to 1995. The next question is whether he was "the lawful holder" of the land and, if so, what the consequence was when his mother died in 1984.
[17] Mr Niu placed strong emphasis on the proposition that land may lawfully be held by a person who is not its registered owner. He pointed to the provisos to Sections 80 and 82 of the Act in support.

[18] A number of different circumstances in which land is lawfully held without it having been registered can be imagined. The first is where the grant was made prior to 1927 (see Minister of Lands & Kalaniuvalu v Tekitaki (1974-80) To. L.R 8). The second is where several deaths in the same line have occurred in close succession and a deceased heir had not had his entitlement registered. Without the provisions referred to by Mr. Niu (to which may be added Section 123) registration on succession would then present difficulties.

[19] The present case does not involve a pre-1927 grant and neither does it involve a registrable, but in fact, unregistered, complete grant. What is involved here, as I have found, is merely an inchoate grant which had not yet been perfected by the issuance of a deed.

[20] Following the death of his mother, Siuaki purported to exercise the right conferred by Section 84 to choose between the Ha'ateiho land and Kauvai to which he had become entitled by operation of Section 82. In my view however, although Siuaki may have been the lawful occupier of the Ha'ateiho land in 1984 he did not in fact "possess" it within the meaning of the proviso to Section 84 because he did not have legal title to it: he was merely in lawful occupation of it. It follows that the decision to take Kauvai did not result in any surrender of the title to the land as envisaged by Section 86. Since no title was in fact available to be surrendered, there was no title available to be granted to Siuaki's son, the third party, by operation of the section.

[21] In my opinion Kauvai devolved upon Siuaki by automatic operation of law in 1984. Since the holding of two allotments of the same kind is forbidden, the purported grant to him in 1995 of the Ha'ateiho land was invalid. My conclusion is that the answer to the first question is that Siuaki was never the lawful registered owner of Ha'ateiho and that as a consequence Section 86 never came into operation and the third party never thereby became entitled to any grant.

What was the consequence, if any, of the third party's failure to apply
for the registration of the Ha'ateiho land in his name?

[22] In 1984, although Siuaki was in lawful occupation of the Ha'ateiho land, he was not, as I have held, in lawful possession of the land and therefore when he took Kauvai he must be taken to have abandoned his as get ungranted application to become its registered owner. In my opinion, at that moment the land again became available for grant under Section 43. In fact no application for a grant to him was made by the third party under this section (or under section 123) and accordingly the land was available for grant (subject to the question of right by occupation referred to in paragraph 5 above) to Naulala 'Eli and to the third plaintiff.

What is the consequence of not joining the Minister?

[23] The Defence and Counterclaim of the third party pleads that following the application for Ha'ateiho, Siuaki and his children moved onto the land (paragraph 6). Whether Siuaki moved to Kauvai following the death of his mother, I was not told, but he died in New Zealand in 1998. According to paragraph 14 of the Counterclaim, the defendant vacated the Ha'ateiho land "in or about" mid 1999 and did not return to it until "about May 2007" there being no one occupying or cultivating (it)".

[24] According to paragraph 13 of the Counterclaim a survey of the land was directed by the Minister in 1998. This was following the applications for the land in 1997 by Naulala Eli and the third Plaintiff. Those applications were not perfected by deeds of grant until June and August 2010. According to paragraph 2 of the Statement of Claim the first plaintiff and her husband (Naulala Eli) "had possession of the tax allotment since January 1998".

[25] Paragraph 24 (b),of the Counterclaim states that the Minister of Lands was wrong to have made the 2010 grants and paragraph 24 (c) states that the Minister had no authority to make the grants. In paragraph 34 of his written submissions filed on 22 August 2011, Mr. Niu suggests that the Minister acted in breach of Section 86 and upon a wrongful assumption. In my opinion, for the reasons already given, Section 86 did not come into operation and the Minister was correct to take the view that the land was, the question of occupation apart, available for grant.

[26] It has already been explained that a grant by the Minster is presumed to be regular. Where it is shown that the land was not in fact "available" for grant (see Tafa v Viau [2006] To. L.R 232) then a grant by the Minister may be overturned. But for this to happen, as was pointed out in Maamakalafi –v- Finau [2004] To. L.R 218, 223, the Minster must be joined.

[27] Notwithstanding the pleadings, what happened to the Ha'ateiho land in the years following Siuaki's decision to take Kauvai is not at all clear. I was told that the third party has for many years lived in the United States but when he left Tonga (or the Ha'ateiho land) I do not know. The assertions of occupation by the defendant advanced in the third party's Defence and Counterclaim were all denied in the plaintiff's Defence to the Counterclaim. The plaintiff's case was that neither the defendant nor the third party had ever occupied the Ha'ateiho lands and even on the third party's case the defendants moved off the land in mid 1999.

[28] In the absence of any evidence on the question of occupation it is impossible for the Court to arrive at any conclusions as to the nature or extent of the occupation claimed by the defendant or third party. It seems likely that following the "election" to take Kauvai some form of occupation continued for some time but, as already seen, no attempt was made to formalize that occupation by application for grant, re-grant or registration.

[29] In these circumstances, there is nothing to show that the Minister may have acted on any wrong principle when the land was surveyed and then divided and granted to Naulala 'Eli and the third plaintiff. In particular, there is nothing to show that the defendant had anything more than a sentimental attachment to the land, nothing at all that gave him any right, whether derived or not from the third party, to occupy it.

LIMITATION

[30] It follows from my finding that Siuaki never became the registered owner of the Ha'ateiho land that the third party's claim, if any, to the Ha'ateiho land arose when Siuaki accepted the grant of Kauvai in 1985. In my opinion, therefore, the third party's claim is statute-barred. Since the defendant's claim is ancillary to that of the third party it must also fail.

CONCLUSION

[31] On the question of liability, I find for the plaintiffs. The matters of damages and further consequential orders will be the subject of further submissions by counsel.

[32] I acknowledge the considerable assistance given to me in this case by Mr. Assessor Blake. The judgment is, of course, my own.

Dated: 16 November 2011.
LORD PRESIDENT