Finau v Minister of Lands [2012] TOLC 1; LA 25 of 2010 (22 June 2012)

IN THE LAND COURT OF TONGA

NUKU'ALOFA REGISTRY

LA 25 of 2010

BETWEEN:

SEINI PAEPAE FINAU
Plaintiff

AND:

MINISTER OF LANDS
First Defendant

AND:

SIONE MAPUMEIHENGALU HEIMULI
Second Defendant

L.M. Niu fo the Plaintiff
'A. Kefu (Solicitor General) for the First Defendant
Mrs F. Vaihu for the Second Defendant

BEFORE THE PRESIDENT AND MR ASSESSOR BLAKE

JUDGMENT

Introduction

1. The Plaintiff, who was born on 4 June 1964, is the eldest daughter of Siosiua Makafana Uikilifi known as 'Olive and his second wife Mele Fifita. The Plaintiff is living in a house on the town allotment in question Nailililili which was registered in her father's name in 1964.
   
2. 'Olive's first wife was 'Olieti Tukia ('Olieti) whom he married in 1939. 'Olieti was a widow. In 1932 she married Manase Vakaloa who died in 1935. At the time of her marriage to 'Olive, 'Olieti was already the mother of a child, Mele Vea Vake known as 'Ani, who was born in 1931.
   
3. At some point in the early 1960's 'Olive and 'Olieti's marriage broke down. 'Olive left 'Olieti in the house and moved into a shop building on the same land where he began living with Mele Fifita. In 1968 'Olive and 'Olieti was divorced and in 1969 'Olive and Mele Fifita married. The Plaintiff and her three siblings were all born before their parents' marriage and were therefore born illegitimate, in other words were not born in wedlock (see Section 82(b) of the Land Act – Cap 132 – the Act).
   
4. In about 1950 'Ani married Semisi Kaivai Heimuli. They had five children, the second eldest of whom is the Second Defendant.
   
5. 'Olieti died in the 1970's, 'Olive died in 1980 and Mele Fifita died in 1994. Following the death of her husband, Mele Fifita continued to hold the land as her widow's estate (Section 80 of the Act) and continued to live on the land together with her daughter, the Plaintiff. In 1988 the Plaintiff married Falakiseni Finau and they have four legitimate children, including a 17 year old son.
   
6. Following the death of Mele Fifita the land was registered in the name of the Second Defendant. On 31 January 1996 this registration was set aside by order of the Land Court which held that he was not entitled to inherit the land through his mother 'Ani since, inter alia, she was not born in wedlock. The Court referred the matter back to the Minister for further consideration (see Kilifi & Kilifi v Heimuli, Minister of Lands and Kilifi [1996] To. L.R. 31).
   
7. In December 1998 the Land Court again ruled on the proper devolution of the land, following Mele Fifita's death. The Court held that there was no lawful heir to the land and that accordingly it had reverted to the Crown under the provisions of Section 83 of the Act (Kilifi v Heimuli [1998] To. L.R. 247).
   
8. Following a Section 83 reversion, Section 88 provides that:
   

"... such allotment unless required for government purposes shall be granted out by the Minister in accordance with such regulations as may be made under the Act" (emphasis added).

It is accepted that no regulations have made pursuant to the section but that a procedure similar to that set out in Section 43 is to be followed when there is application made for a grant of reverted land. Two essential ingredients of this procedure are first, that an applicant must formally apply to the Minister for a grant to him and secondly, the Minister, before approving the grant must take such steps as are reasonable to acquaint himself with all information relevant to the application including objections to the application, rival applications and the situation on the land itself. Before approving an application, the Minister, under the ordinary principles applicable to administrative decisions, should give a fair hearing to interested persons and should give adequate reasons for the decision taken. (see e.g. Hakeai v Minister of Lands & Anor [1996] To. L.R. 142).

9. On 28 August 2006 and 30 August 2006 the then Minister of Lands (Hon. Tuita) held meetings at which several members of

The extended family including the Plaintiff and the Second Defendant were present. Also present were lawyers including Mr Niu and, on the second occasion, Mrs Vaihu. Copies of English translations of the minutes were tendered by consent at the trial and marked Exhibit 1 and Exhibit 2.

10. The Minister decided to grant the land to the Second Defendant. The minutes of the meetings do not contain any statement of reasons for the decision reached.

11. On 13 November 2006 the Second Defendant made formal application for the grant of the land to him [Exhibit D1-3 & 4]. It will be noted that Form 9 used for his application was designed for use with Section 43 of the Act, not Section 88, and includes the declaration by the applicant that "there is no impediment to prejudice this grant".

12. On 4 July 2007 the Minister granted the land to the Second Defendant. The deed of grant is Exhibit D1-7&8.

The Plaintiff's case

13. The Plaintiff's case is that the Minister erred in granting the land to the Second Defendant first, because at the time of the grant the Plaintiff was in lawful occupation of the land which was therefore unavailable for grant to the Second Defendant or indeed anyone else (see paragraphs 18 & 19 of the Statement of Claim and paragraphs 28 and 29 of Mr Niu's written submissions filed on 9 May 2012). Secondly, it is said that the Minister erred because his decision to grant the land to the Second Defendant was based upon his mistaken belief that the Second Defendant was a blood descendant of 'Olive through 'Ani. The Plaintiff says that in fact 'Ani was the daughter of one 'Inoke 'Anisi Bloomfield whom 'Olieti had known prior to her marriage to her first husband Manase Vakaloa.

14. The Plaintiff seeks cancellation of the grant to the Second Defendant. She also seeks an order directing the Minister to grant and register a lease in her name over the land; in the alternative to grant the allotment to her son.

The First Defendant's case

15. The First Defendant's case is set out in detail in paragraph 19 of his Statement of Defence and in Part III Sections A and B of counsel's written submissions filed on 16 April 2011. Put briefly, the Crown submits first, that a pre-reversion right of occupation of land does not confer a post-reversion right to continue that occupation and secondly, that 'Ani's possible blood connection to 'Olvie was only one factor among others taken into account by the Minister. It is submitted that he had adequate grounds for granting the land to the Second Defendant rather than to the Plaintiff. The Plaintiff was in any event, because of her gender, not entitled to a grant (Section 43(1)).

16. (It may be noted at this point that the possibility of a grant to the Plaintiff's son was apparently not put to the Minister. It seems probable that he was not 16 years old at the time (2007) since the Statement of Claim (paragraph 21) states that the son was only aged 17 over three years later, in November 2010. In my view it is not now open to the Plaintiff to argue that the Minister was wrong not to have allocated the land to the son).

17. It may also conveniently to be noted at this point that a possible issue arising from the Second Defendant's nationality (see Part C of the First Defendant's closing submissions filed on 16 April 2011) was resolved by the production of a copy of his Certificate of Naturalization.

The Second Defendant's case

18. The Second Defendant's case was the First Defendant had taken all relevant issues into account before arriving at a decision which was not only open to him on the evidence before him but which was in fact appropriate in all the circumstances. Mrs Vaihu also suggested that the provisions of Section 83 and 87 of the Act would be defeated if a person lawfully in occupation of the land prior to reversion was allowed to remain is possession after the reversion had taken place, thereby preventing re-grant.

Consideration of the issues:

First Question: was the Plaintiff's occupation of the land at the time of its grant lawful and if so was this fact a sufficient reason to prevent the land being lawfully granted to the Second Defendant?

19. Mr Niu's learned argument on this question is set out in paragraphs 11 to 31 of his submissions filed on 9 May 2012. In essence he submits:

(a) that the Plaintiff was living on and in lawful occupation of the land immediately prior to its reversion to the Crown in 1994 having been born and raised on the land and being the occupier of a house built on the land by her father and grandfather;

(b) after the reversion to the Crown the Plaintiff, her husband and her children continued lawfully occupy the land and the house upon it in which they lived;

(c) by reason of (b) the land was not available for re-grant whether to the Second Defendant or anyone else.

20. By way of introduction to these submissions, Mr Niu pointed out at paragraph 7 of his written submissions that (aliens excepted) there is nothing in the Act to "prohibit or restrict the right of a tax or town allotment holder to allow any other subject to live on and occupy his tax and town allotments". I respectfully agree, but do not agree that a right to be present on land necessarily carries with it the right to remain.

21. The great majority of persons present on any piece of land have a right to be present there not because they are the holders of a grant, or are lessees, or have some other interest in the land, but because they are licencees. In the present case, while the land was being held by 'Olive he was the only person with an interest in the land but all those members of his family, his friends and the other invitees all had the right to occupy such parts of the land for such time and upon such conditions as were agreed with 'Olive. These persons' right to occupy the land derived not from a grant to them under the Land Act but as a result of permission given to them by the holder of the land – in this case 'Olive.

22. When the holder of a grant dies, the Act sets out in precise detail who shall have the right to inherit the land. No right is given to a licencee except to a widow and a legitimate unmarried daughter and those rights expire upon death. The fact that a licencee other than a widow or legitimate unmarried daughter is resident upon the land, is a lawful occupier of the land, does not prevent the land being inherited. Once the land has been inherited there is nothing (estoppel excepting) to prevent the heir obtaining vacant possession.

23. The reversion provisions in the Act are Sections 83 and 87. These provide that reversion occurs either when there is no heir or where an heir fails to claim. When such reversion take place then, as already pointed out in paragraph 8 above:

"... such allotment unless required for government purposes shall be granted out by the Minister..."

24. Mr Niu, suggested that the wording of that section must be interpreted in the light of considerations not directly referred to in the Act.

He suggested that the Minister will not be permitted to re-grant the reverted land unless it is "available" for grant. Relying on Tafa v Viau [2006] To. L.R. 125 he suggested that the land was not "available" for re-grant because the Plaintiff was in legal occupation of it and was living in a house which she owned and which was built upon it. As already pointed out however, the fact of legal occupation does not ipso facto confer a right to continue that occupation. It was not contended that the Plaintiff's right to occupy the land was anything other than a personal right as opposed to being derived from some interest in the land. As a member of 'Olive's family she had his permission, his licence, to reside on the land. When 'Olive died the Plaintiff continued on the land with the permission of his widow Mele. The Plaintiff then became Mele's licensee. It was not contended that there was ever any form of contract between the Plaintiff and either 'Olive or Mele and accordingly the licence granted to her was a gratuitous licence which was revoked when Mele died. (See generally: Megarry Law of Real Property 3rd Edition p775 et seq and Cobb v Lane [1952] 1 All ER 1199).

25. Section 88 itself make no reference at all to availability. The inclusion of a provision in the section for separate regulations (admittedly not yet made) suggests that the requirement for "availability" specifically included it Section 50 (and impliedly referred to in the declaration set out at paragraph 11 above) does not apply. The section specifically imposes only one restriction on the Minister's discretion to re-grant the land: the provision that it not be re-granted if required for government purposes. In my view this suggests no other constraints apply: expressio unius exclusio alterius.

26. In my view the correctness of the proposition that "the land in question was not land "available" for grant because of its occupation by the Defendants" (Tafa v Viau, paragraph 63) must also be examined.

27. The basis for the view that land currently occupied is "unavailable" for grant or re-grant has its origin in Vai v 'Uliafu & Anor. [1989] To. L.R. 56 in which at page 63, line 390:

"The Court finds as a fact that the land was not available ... because a house had been built on the land".

28. While at first sight this statement leads to the statement that:

"land available in this context did not include land occupied by other people" (Tafa v Viau para [63])

the fourth paragraph of page 64 of Vai v 'Uliafu states:

"while it may be one thing to consider as "available" land which a person is occupying as a squatter without any form of leave, it would not be right to include in "available" land plots occupied with leave of the estate holder or his agent".

In other words, it is not the fact of occupation which prevents land being "available" it is the fact of the occupier having some form of right to remain on the land to the exclusion of anyone else (which of course a squatter cannot have) which makes the land "unavailable".

29. In my opinion, the fact that a house has been built on the land, while alerting an enquirer such as the Minister that the occupier may be able to assert some claim to continue occupying the land is not itself the determinative of anything at all in respect to the right to occupy the land. I believe this conclusion is further fortified by the fact that in Tonga buildings (including residential houses) are not in general regarded as forming part of the realty (see Cowley v Tourist Services Ha'apai v Fund Management Ltd [2001] To. L.R. 183 and Kalo v Bank of Tonga [1997] To. L.R. 181).

30. As I see it, the Plaintiff's right to occupy the land ended on the day that her mother died. Her right to the chattels on the land including the house, the shop and the water tank was a right to remove them, a right similar to that of a lessee to remove houses and improvements from the land prior to its reversion to the lessor. I also agree with Mrs Vaihu that Mr Niu's interpretation of Sections 83 and 87 would result in those sections being deprived of any practical meaning. Finally, the effect of looking at reversion in that way would be to perpetuate rights of possession indefinitely and to extend them to anyone (and his descendants) who happened to be lawfully on the land at the moment of reversion. That interpretation cannot possibly be correct. As I find it, the first issue must be resolved against the Plaintiff.

31. For the avoidance of doubt, I should emphasise that nothing of the above should be taken question to correctness of Tafa v Viau [2006] To. L.R. 287 in which the Court of Appeal upheld the setting aside of the Minister's decision to allocate land without first acquainting himself with all relevant information relating to the occupation of the land in question. Furthermore, nothing should be taken as questioning the correctness of the last sentence of the judgment of the Court of Appeal in The Church of Jesus Christ etc v Fepale & Ors AC 3/2011 which involved the re-grant of land subject to a lease and not, as here, land which was unencumbered.

Consideration of the issues: second question: did the Minister err by acting in the mistaken belief that 'Ani was a blood descendant of
'Olive?

32. The minutes of the Minister's meeting with the claimants to the land (Exhibit 1 and 2) confirm that 'Ani's legitimacy and parentage were raised and debated at both meetings. On 28 August 2006 Mr Niu pointed out that 'Ani could not possibly have been born in wedlock since her birth took place eight years before her mother married 'Olive in 1939. He stated "the matter pertaining to the birth certificate is of vital importance to me". A copy of the birth certificate (later produced by the Second Defendant as Exhibit D2-1) was shown to the Minister. This document, described by Mr Kefu as raising "serious concerns" describes 'Ani as "legitimate". It states that her parents were 'Olieti and 'Olive. At paragraph 20 of his written submission Mr Kefu suggested that even if she had been born illegitimate (as seems certain to be case and was accepted to be the case in Kilifi v Kilifi (supra)) she may have been legitimated by her parents' subsequent marriage.

33. Surprisingly, none of the parties asked for a copy of the original Birth Register to be produced. It was only after the Court asked for it that Mr Registrar Tuita came to Court with the Register. This, apparently of a copy of the original, made in the 1970's or 1980's, shows that 'Ani was legitimated after the marriage of her the parents in 1939. There is nothing available to show what evidence was received by the Registrar in 1939
as was required by paragraph 1 of the Schedule to the Legitimacy Act (Cap 32) but there is nothing either to suggest that the requirement was not satisfied.

34. Mr Niu called one witness on the issue, Palei Kolotau Vaha'i who told the Court that he was 89 years old having been born in 1923. He told the Court that he knew 'Olieti who was married to his father Manase Vakaloa in 1932. According to Palei "'Olieti had no children before she married my father". The foundation for that belief was not stated. Palei also told the Court that he remembered 'Ani having her first birthday celebration (in 1932 when he was aged 9) at 'Inoke 'Anisi's house. "I heard rumours that 'Ani's father was 'Inoke 'Anisi".

35. The Second Defendant also called one witness on the issue, Maile 'Aisea. This witness, who was born in 1947, told the Court that "'Ani's father was 'Olive. I never heard that 'Ani was anyone else's daughter. 'Olive told me that 'Ani was his only legitimate daughter". In cross-examination he stated that "'Olive had told me that 'Ani was born to 'Olieti after they were married". This, according to the marriage certificate of 'Olive and 'Olieti (Exhibit P-5) and 'Ani's birth certificate (Exhibit D2-1) cannot be correct.

36. It appears from Exhibits 1 & 2 that neither of these witnesses appeared before the Minister. Whether either was available, the Court was not told. It is unfortunate that the Minister did not give any reasons for his decision but it does not appear to me that his decision was obviously mistaken. As already noted, the Minister had no power to make a grant of the allotment to the Plaintiff because of her gender. He was not asked to allot the land to the Plaintiff's son. Such documents as are available show that 'Ani's parents were indeed 'Olive and 'Olieti and that she was legitimated after their marriage, as suggested by the Solicitor General. I prefer the evidence of these documents to rumours and memories of a birthday party held 80 years ago. If 'Ani's parents were in fact 'Olive and 'Olieti than it of course follows that the Second Defendant is a legitimate blood descendant of 'Olive. I am not satisfied that the Plaintiff has shown that the Minister's discretion miscarried and accordingly this limb of Plaintiff's argument fails.

Result

37. I am not satisfied that the Plaintiff has shown either that the Minister erred in law or in the exercise of his discretion in granting the land to the Second Defendant. In the result, therefore, the Plaintiff's claim fails.

M. D. Scott
NUKU'ALOFA: 22 June 2012.

PRESIDENT

N. Tu'uholoaki
22/6/2012.