Schaumkel v 'Aholelei [2012] TOLC 2; LA 18 of 2007 (17 August 2012)

IN THE LAND COURT OF TONGA

NUKU'ALOFA REGISTRY

LA 18 of 2007

BETWEEN:

MAKAFALANI SCHAUMKEL
First Plaintiff

AND:

SATEKI SCHAUMKEL
Second Plaintiff

AND:

SOANE VAKAMEITANGAKE 'AHOLELEI
First Defendant

AND:

MINISTER OF LANDS
Second Defendant

BEFORE THE PRESIDENT and MR ASSESSOR BLAKE

Introduction

[1] The subject matter of this action is a town allotment known as Tali Ki 'Okalani which is situated at Vaha'akolo Road, Kolofo'ou (the land).

[2] At present, the land is occupied by the First Plaintiff and his second wife. The Second Plaintiff, who is the First Plaintiff's eldest son by his first marriage, is presently living overseas.

[3] Until about 1977 the land belonged to the Free Weslyan Church however the Church wished to acquire land in Railway Road and reached an agreement with the owner of that land 'Aisea 'Aholelei Vakameitangake ('Aisea Snr.) to exchange the two properties. Despite execution of the agreement, no registration of the land in 'Aisea Snr's name was made prior to his death on 20 June 1977.

[4] 'Aisea Snr was married to Siu 'Aholelei (Siu) who survived him, together with their two children, a daughter, Siosi'ana and a son Lisiate Vakameitangake 'Aholelei (Lisiate).
[5] On her husband's death Siu became entitled to a life estate in the land by operation of Section 80 of the Land Act (the Act) and especially, the proviso thereto. According to paragraph 6 of the Second Defendant's Statement of Defence filed on 12 October 2010, Siu lodged her claim (as required by Section 87 of the Act) on 30 September 1977 but the land was not registered in her name until 15 January 1980.

[6] Prior to his father's death Lisiate had been granted an allotment of his own known as Sia-Ko-Veiongo. Under the provisions of Section 82 of the Act, Lisiate had the expectation that upon his mother's death, resulting in the termination of her estate, he, as eldest (indeed only) son of 'Aisea Snr would succeed. Since he already had an allotment of his own he would then be faced with choosing between the allotment he already held and that which he stood to inherit from his father (Section 84). This choice, however, would not arise until his mother's death.

[7] On 30 November 1978, some six years before his mother's death, Lisiate wrote an open letter in which he certified that the First Plaintiff:

"... husband of my real sister [Siosi'ana] got the authority from myself to build his house in my piece of land"

The "piece of land" which Lisiate claimed to be his was the land in issue in this case. Since his mother was still alive it was not in fact his land and could not become his land until he had exercised his Section 84 choice and had chosen to surrender Sia-Ko-Veiongo.

[8] Acting on the strength of the letter [Exhibit P-1] the First Plaintiff obtained a loan from the bank and, after clearing the land (which had previously been unoccupied) built a house upon it. The First Plaintiff and Siosi'ana went to live on the land and they brought up a family there including the Second Plaintiff, their elder son.

[9] On 24 November 1984 Siu died. On 3 December 1984 Lisiate wrote to the Second Defendant (the Minister). A copy of his letter is Exhibit D2-1 and D2-2 and the translation is Exhibit D2-1a and D2-1b. After the Minister approved Lisiate's request it appears that the land was registered in Lisiate's name and he was also appointed trustee of Sia-Ko-Veiongo for the benefit of his elder son 'Aisea Vakameitangake 'Aholelei ('Aisea Jnr). In other words, he exercised the option conferred on him by Section 86 of the Act. Although he had become the registered owner of the land Lisiate and his wife continued to reside at Sia-Ko-Veiongo while the First Plaintiff and his family continued to live on the land. According to paragraph 10 of the Statement of Claim, the Plaintiffs were unaware that the land had been registered in Lisiate's name until 2001.

[10] In 1992 the defining event of this dispute occurred: Siosi'ana died. In 1994 the First Plaintiff married again and brought his second wife to live on the land. Lisiate's wife Mateline told the Court "I do not know Maka's second wife. I have never met her. Lisiate really disliked the second wife; he was mad at Maka for bringing his second wife onto the land".

[11] On 2 August 2001 Lisiate wrote to the First Plaintiff asking him to remove from the land (Exhibit P-2a). On 6 August the First Plaintiff replied (Exhibit P-3a). He refused to remove. He claimed:

(i) "It was the wish of your parents to give the piece of land to me and Siosi'ana because of our children";

(ii) "You signed a letter [Exhibit P-1] that you consented that I build on the piece of land ... if you had not consented I would not have spent money building this home.";

(iii) That, at Siosi'ana's funeral Lisiate had assured him that the land would eventually become the Second Plaintiff's;

(iv) That, over the years he had provided substantial financial assistance to Lisiate's family at their request.

[12] Further correspondence was exchanged but the dispute was not resolved. In 2002 (Exhibit P-8(a)) the First Plaintiff suggested that by allowing him to continue living on the land after Siu's death, the First Plaintiff and his family had suffered further detriment. He explained that in 1984 he could have found alternative land for $2000 whereas by 2002 the same piece of land would fetch $8000 - $10000. He accused Lisiate of cheating him.

[13] On 13 June 2003 solicitors acting for Lisiate gave the First Plaintiff notice to quit (Exhibit P-10). On 18 June 2003 solicitors for the Plaintiffs replied (Exhibit P-11). It was suggested that in all the circumstances Lisiate was "legally estopped from evicting or seeking to evict" the First Plaintiff.

[14] On 4 July 2004 Lisiate died. He was survived by his widow Mateline 'Aholelei (Mateline – already referred to in paragraph 10 above) and several sons. The elder was 'Aisea Jnr and the next eldest was the First Defendant (Soane). By the time of his father's death 'Aisea Jnr had turned 16 and had taken Sia-ko-Veiongo which his father had previously held for him in trust.

[15] On 21 March 2005 Mateline presented her claim to the widow's life estate in the land. Her affidavit (which is accepted to refer to the land but does not in fact precisely identify it) is Exhibit D2-3a. On 27 February 2006, before the land had been registered in Mateline's name, 'Aisea Jnr wrote to the Minister (Exhibit D2-4a):

"The reason I am disturbing you is the allotment Tali ki 'Okalani. It is ... currently under this lowly person Mateline 'Aholelei Vakameitangake of Kolomotu'a as widow."

"Since the heir 'Aisea Vakameitangake 'Aholelei ['Aisea Jnr] already holds a town allotment [ie Sia-Ko-Veiongo] we have both agreed with the heir 'Aisea, to surrender the allotment Tali Ki 'Okalani to the man, the Second heir, Soane Manavahetau Vakameitangake 'Aholelei [ie the First Defendant]".

[16] On 31 October 2006 the Registrar of the Lands Office wrote to the Minister (Exhibit D2-5a):

"The widow and heir have agreed that the town allotment [be transferred] to the Second son [the First Defendant]. The heir [ie 'Aisea Jnr] does not have any children and so I recommend to directly transfer the town allotment from the deceased Lisiate to the second son in accordance with the wish of the widow and the heir".

On the same day the Minister accepted the Registrar's recommendation (see endorsement on D2-5a).

[17] On 21 May 2007 a deed of grant of the land was finally issued (Exhibit D2-6). The grant is to 'Aisea Senior (who had died almost exactly 30 years before the deed was issued) and records on its reverse (Exhibit D2-7a) that after 'Aisea Junior's death it was posthumously registered in Siu's name and after her death it was "changed to Lisiate" and, after his death in 2004 "has been changed on 9 November 2006 to [the First Defendant] to be his town allotment in accordance with the law."

The Plaintiffs' Claim

[18] The Plaintiffs claim that the transfer to the First Defendant was not "in accordance with the law" and they seek an order cancelling the registration of the land in the First Defendant's name. Alternatively, although not pleaded, it is claimed that only the First Plaintiff has the right to hold the land, that Mateline and/or Soane are estopped from evicting the Plaintiffs and that the Minister is not empowered to grant the land to anyone except the First Plaintiff.

The First Defendant's Defence and Counterclaim

[19] The First Defendant's Defence first of all pleads the fact of his registration as the holder of the land (see Makalofi To'ofohe v Minister of Lands [1958] To. L.R.157). It was also suggested that neither Siu nor Lisiate were the registered owners of the land in 1978 and therefore could not enter into a binding agreement in relation to the land. In paragraphs 17 and 19 it is pleaded that the purpose of the agreement was not to give the land to Siosi'ana and the Plaintiff to own, but merely to occupy. When the agreement was entered into it was not foreseen that Siosi'ana would die so soon and that her husband, the First Plaintiff would remarry and bring his second wife onto the land. In paragraph 23 it is stated that First Plaintiff and his second wife have been living on the land unlawfully. In paragraph 22 it is stated that the First Defendant has "observed all the requirements of the Land Act" in making his application for the land. In addition to seeking the dismissal of Plaintiff's claim, the First Defendant sought an order for vacant possession of the land.

The Second Defendant's defence

[20] The Second Defendant's defence is less easily summarized since, as will be seen later, the defence as pleaded is somewhat different from the defence as led in evidence and as set out in the written submissions filed on the Second Defendant's behalf. As pleaded in the Statement of Defence (and in particular in paragraphs 10(vii)(a) to (d)) the registration of the land in the First Defendant's name was valid because:

(a) 'Aisea Junior had no legitimate son who could elect to take the land under the provisions of Section 84;

(b) The First Defendant had no town allotment of his own and therefore could not elect to take the land under the provisions of Section 85;

(c) Therefore the land reverted to the Crown under the provisions of Section 83; and

(d) Became available for regrant by the Minister to the First Defendant under the provisions of Sections 88.

In paragraph 24 of the Statement of Defence it was pleaded that the fact that the land was occupied by the Plaintiffs at the time of the re-grant (whether or not this fact was known by the Minister) was irrelevant since the re-grant was a grant of land previously held by a father to his son and was not a "totally new grant".

The evidence

[21] The First Plaintiff produced the letter for the bank prepared by his brother in law, Lisiate (Exhibit P-1). On the strength of his letter he had borrowed money and then developed the land. Lisiate and Mateline were well aware of what was happening, both before and after Siosi'ana's death. He had understood from Lisiate that the land would eventually be allocated to his son, the Second Plaintiff. At Siosi'ana's funeral Lisiate said to him "don't worry, the land belongs to your son". If he had known that his occupation of the land would only be temporary then he would not have spent so much upon it. As it was "I spent all my money on the land and had nothing left for my own town allotment which I registered in the 1990's." In cross examination the First Plaintiff agreed that the Act provides that allotments descend in the male line. He agreed that he had not attempted to have the land registered in his own name. He accepted that Siu had no right to gift the allotment to him. He also agreed that he had only obtained the right to move onto the land because he married Siosi'ana. He accepted that no attempt had been made by Siosi'ana and himself to lease the land.

[22] The Second Plaintiff told the court that he lived in Auckland, New Zealand where he is a probation officer. He is a Tongan citizen but, unlike his brothers, does not have a tax allotment. He remembered helping to clear the land in 1977. He understood that the land was going to become their permanent home. At his mother's funeral Lisiate said to him "don't worry – it is your land".

In cross examination the Second Plaintiff accepted that he is the heir to the First Plaintiff's own tax allotment. He explained that his claim to the land was based on the assurance given to him by Lisiate at his mother's funeral.

[23] Mateline told the court that she returned to Tonga from New Zealand in 1984. Her understanding was that the First Plaintiff and Siosi'ana were living on the land temporarily and would look for their own piece of land in due course. She knew that a house had been built on the land prior to 1984. "After Lisiate signed the form he told them to build the house at the back of the allotment, not the front." [A visual inspection of the land from the road reveals that this is what in fact happened]. Mateline conceded that in 1988 a warehouse had also been built on the land and that in 1997 the land had been fenced. She contended that no permission had ever been given by Lisiate for these additional constructions.

[24] As already mentioned in paragraph 10 above, Mateline told the court that Lisiate was very unhappy with the First Plaintiff's decision to re-marry and bring his second wife onto the land. "I went to the Ministry of Lands. I went to find a way to get the Plaintiffs off the land. Lisiate was in Australia at the time. The Minister told us that Lisiate should surrender the land and Soane could apply for it". "The Minister lived nearby and knew the whole story. I did not tell the Plaintiffs that I was going to see him".

[25] The last witness was Fataua Halatanu, the Land Registrar. He gave a detailed account of how the land ended up being registered in Soane's name. In Mr Halatanu's opinion the land never reverted. It was never registered in Mateline's name and was simply transferred from Lisiate to Soane because this was Mateline's wish and the wish of 'Aisea Junior and Soane. There was no formal application for the grant to him by Soane [as would ordinarily be required by Section 43 of the Act] because the land did not revert. The widow was still alive and she waived her right to the life estate, therefore the land simply passed to the next eligible heir who, because 'Aisea Junior had no legitimate son at the time, was Soane. Cross examined by Mr Niu, Mr Halatanu denied that he was aware that the Plaintiff was occupying the land. He also stated that he was unaware that there had been any direct communication between Mateline and the Minister. He accepted that no inspection of the land was carried out prior to its registration in Soane's name:

"When there is an affidavit of the heir, there is no need to check the allotment".

[26] Following the close of the Second Defendant's case it was agreed that written submissions would be filed. Eventually submissions were filed by all counsel. These were of a high quality and I am grateful for them. In view of the length and complexity of the submissions only the barest summary will be attempted. The full written submissions should be read in connection with this judgment.

Summary of the Plaintiff's submissions

[27] Mr Niu began by pointing out that Mateline had never in fact been granted a life estate in the land. While she had complied with Section 87 by presenting her claim within 12 months of Lisiate's death, no other claimant had complied with the section. When therefore she withdrew her claim, in the absence of any other person claiming, the land reverted to the Crown by automatic operation of that section.

[28] Where land reverts, it can be re-granted by the Minister in "accordance with such regulations as may be made under this Act" (Section 88). It is accepted that no regulations specific to Section 88 have been made. The question therefore is whether an application for a re-grant must comply with the requirements of Section 43(2). It is accepted that in the present case no application complying with Section 43(2) was made by Soane.

[29] Mr Niu's second submission was that in any event the heir to the land (either upon the death of the widow or, presumably, upon the withdrawal of her claim) was not Soane but 'Aisea Junior. Since, however, 'Aisea Junior did not, as required by Section 87, claim the land within twelve months of his father's death it reverted to the Crown.

[30] Mr Niu submitted that following its reversion it became available for re-grant but, relying on Taufa v Viau [2006] To. L.R. 287, because the First Plaintiff and his family were in lawful occupation of it, it was unavailable for re-grant to anyone other than the occupier, the First Plaintiff.

[31] It has been noted that in Mr Halatanu's expert opinion the land did not (despite the contrary being pleaded in the Statement of Defence as noted in paragraph 20 above) in fact revert to the Crown; it was merely "transferred" or "passed" from the deceased Lisiate. Mr Niu's response to that submission which was contained in the Second Defendant's written submission will be considered later.

First Defendant's written submissions

[32] Mrs Taumoepeau began by emphasizing that Soane was in fact the registered holder of the land. This registration, it was submitted, was correctly effected, over 5 years ago. The evidence showed that the First Plaintiff's right to occupy the land flowed from his marriage to Lisiate's sister Siosi'ana whose wellbeing the family wished to safeguard. When Siosi'ana died and the First Defendant revoked the Plaintiffs' licence to occupy the land they should have vacated.

[33] Turning to the process by which the land came to be registered in Soane's name, Mrs Taumoepeau argued that there was neither a reversion within the provisions of Section 87 nor a surrender in terms of Section 54. She supported the view that all that had happened was that after Mateline had waived her right to her life estate the land had been transferred by the Minister within the family, after the line of succession had been verified.

Second Defendant's written submissions

[34] Mr Kefu's written submissions filed on behalf of the Minister broadly agreed with Mrs Taumoepeau's description of the legal process by which the land came to be registered in Soane's name. In his submission, Mateline's waiver of her entitlement was not a Section 54 surrender. Furthermore, it was not a Section 83 reversion because such a reversion only occurs when the last lawful male holder dies without leaving an heir entitled to succeed. It was also argued that Section 84 did not apply since the right of election only arises when the next heir is the son or grandson of the deceased holder.

[35] Mr Kefu's submission was, contrary to the Defence filed, that the land did not revert to the Crown but was simply transferred "within the heirs". According to Mr Kefu this is a "common practice ... facilitated by the Ministry when there is no doubt about the next heir". Since there was no grant or re-grant involved, merely "a transfer along the line of succession" there was no requirement to be satisfied that the land was "available". The rule in Tafa v Viau [2006] To. L.R. 287 was therefore not relevant.

Final Submissions by the Plaintiffs

[36] In his final submissions, Mr Niu again suggested that the effect of Mateline's waiver, taken together with the accepted fact that 'Aisea Junior had not made a claim to the land within the required twelve months, had the result that the land reverted to the Crown. Mr Niu also challenged the Minister's right to transfer the land in the manner advocated by the Defendants. After examining the operation of the relevant provisions of the Act in considerable detail, Mr Niu submitted that: "there is no discretion or power in the Minister to allow a person who may be an heir in future but who has no allotment of the same kind at present to succeed as heir to the devolving allotment".

Consideration of the issues

[37] It is worth remembering at the outset that Section 5 of the Act provides that:

"Every estate and allotment is hereditary according to the prescribed rules of succession."

and that Section 6 provides that:

"Every verbal or documentary disposition by a holder of any estate or allotment which purports to effect a voluntary conveyance .... is null and void."

The need for compliance with the provisions of the Act was emphasized in O.G. Sanft & Sons v Tonga Tourist and Ors. [1981-1988] To. L.R. 26, 33 where the Privy Council stated:

"In respect of Tongan Land, the Land Act is a complete code which .... rigidly controls by its express terms all titles and claims to any interest in Tongan Land except in respect of leasehold interests, once they have been created .... with that exception there is no room for the application of any rule of equity – all claims and titles must be strictly dealt with under the Act. No estate, right, title or interest can be created except in accordance with the provisions of the Act."

[38] Shortly after the judgment in Sanft the Land Court distinguished between the creation of an equitable interest in land and the availability of an equitable defence such as estoppel (see Veikune v To'a [1981-1988] To. L.R. 138 and the correctness of the distinction has not been doubted (see especially Matavalea v 'Uta [1989] To. L.R. 101).

[39] As previously mentioned, Mr Niu did not in fact plead estoppel in his Statement of Claim, relying rather on the claim that the First Plaintiff was in lawful occupation of the land which could not therefore be re-granted to Soane. In support of that proposition Mr Niu relied on Tafa v Viau (above).

[40] In my view however, Tafa v Viau is not authority for the proposition that land which is lawfully occupied is not therefore available for grant. It my view it is authority for the proposition that before granting land to a person applying for a grant under Section 43 of the Act, the Minister is obliged to investigate the circumstances on the land in question and, in particular, when there is found to be on the land a person living in a house who claims to have been living lawfully there for some time, the Minister must fully enquire into the basis of the resident's claim to be allowed to continue to reside on the land.

[41] It must be remembered that being lawfully on the land is not the same as having a right to continue that occupation indefinitely. As I in endeavoured to explain in detail elsewhere (Finau v Minister of Lands and Anr LA 25/2010) and as pointed out by Hill J in Palu v Bloomfield [1974-1980] To. L.R. 105, a person who is given permission to occupy land by the landowner does not acquire an interest in the land, he is merely the holder of a licence to occupy the land and will be required to vacate the land upon reasonable notice being given. In the absence of a precise agreement, what is reasonable and what other conditions will apply will depend on the nature of the equity which the licencee has been found by the Court to be entitled to have satisfied (see Plimmer v Wellington Corpn. (1884) 9 App Cas. 699; Greasley v Cooke [1980] 3 All ER 710 and see also Snell: Principles of Equity, 26 Edn. p 632).

[42] It must also be borne in mind that in Tonga, houses are generally considered to be chattels and therefore do not form part of the land (Kalo v Bank of Tonga [1997] To. L.R. 181). In my view, until the Courts are able to recognise that some buildings are so substantial and so permanently affixed to the land that they cease to be chattels and become part of the land, the fact that a house has been built upon a piece of land is no more determinative of the person's right to continue residing on the land than is the fact that a person has driven a caravan on to it.

[43] A close examination of Vai v 'Uiafu [1989] To. L.R. 56 (in which the notion of "availability" first seems to have been raised as an issue) reveals that Webster CJ conceded that land would not become unavailable merely because a house had been erected upon it by a squatter (p 64 lines 410). In other words, the fact that there is a house on the land does not ipso facto provide a lawful excuse for remaining on the land. It does however put the Minister on notice that the occupier may have a right to remain, and that notice will be ignored at the Minister's peril.

[44] In paragraphs 23 to 26 of his written submissions Mr Kefu suggested that "since this is a case of transfer, but not a re- granting a land" the question of availability raised by Mr Niu was irrelevant. I do not agree. In Hakeai v Minister of Lands & Ors [1996] To. L.R. 142, 143 the Court of Appeal stated that:

"It is clear law that a person whose rights, interests or legitimate expectations are imperilled by an official's consideration of some other person's application will generally be entitled to a fair opportunity to be heard before a decision adverse to him is made ..... here Manuao, although the officials of the Ministry of Lands knew the surrender had been arranged to enable him to apply for a grant of the allotment, was not given any opportunity to argue that he should have priority before the purported grant was made to the appellant".

In the present case I accept as a fact that the First Plaintiff was well known in the Ministry to have been in occupation of the land for many years and wished to remain there. He should have been given an opportunity to express his view before the land was dealt with by the Ministry. The question however which then arises, is, what would the Plaintiff's claim to the Ministry have been?

[45] In her very interesting and informative written submissions Mrs Taumoepeau explained the historical and cultural environment against which she suggested consideration of the First Plaintiff's right to live on the land should be considered. The First Plaintiff had married Siosi'ana who was not in good health. He himself had no town allotment while Tali-Ki-'Okalani was vacant. The purpose of the permission granted by Lisiate on behalf of his mother, the holder of the land, was primarily, it was submitted, to provide a place of abode for Siosi'ana and then only secondly, for her husband and family. When Siosi'ana died, Mrs Taumoepeau suggested, the purpose of the licence to occupy which had been granted by Lisiate to the First Plaintiff had been served.

[46] In cases of this kind, where family agreements are reached without anything being written down, when the agreement was reached years ago between parties, some of whom have died, where none of the parties took legal advice and much of the evidence consists of hearsay, it is not at all easy to define the terms of the agreement with any precision. On the one hand, the First Plaintiff claims that he was promised that the land would be his for his life time and for his eldest son to inherit. On the other, the First Defendant argued that Lisiate had every right to revoke the First Plaintiff's right to live on the land after he remarried and brought his second wife to live with him.

[47] The central difficulty for the First Plaintiff, as I see it, is that he could not possibly claim that Lisiate could guarantee that the Second Plaintiff would ever succeed to the land. Even if Lisiate had agreed to surrender his own claim to the land in favour of either of the Plaintiffs, he could not possibly guarantee that Cabinet's consent, required by Section 54, would be forthcoming or that his own heir, 'Aisea Junior, would agree. As pointed out by the Court of Appeal in Vailea v Sakalia, Schaumkel & Minister of Lands [1995] To. L.R. 138, 141:

"... there is no provision in the Land Act for a person surrendering land to impose conditions to that surrender. So the wishes expressed by the Appellant ... have no legal consequences. The First Respondent, as the next eligible heir of the Appellant was entitled to claim the land and be registered as the holder."

"We accept that, had the Appellant been properly advised of the effect of surrendering the allotment, in particular that the persons he wished to take would not, he would not have made the surrender."

(And see also Kaufusi v Kaufusi [1998] To. L.R. 173; Taumoepeau v Taumoepeau [2000] To. L.R. 236, 240).

[48] In my view, the First Plaintiff's right to enjoy the land until the Second Plaintiff became its registered holder is not maintainable. In my opinion the force of Mrs Taumoepeau's submission that this was Vakameitangake family land and that its use was only extended to the First Plaintiff because of his marriage to Siosi'ana has to be acknowledged. Although to some non- Tongans the difficulty caused by the bringing of a second wife on to the land might not be immediately apparent, I accept the submission that this was in fact the case and that Lisiate, through Mateline, the Minister and his lawyer then tried to remove the First Plaintiff from the land (Exhibit P-10). The fact that Section 80 of the Act provides that a widow's life estate terminates upon her re-marriage is another illustration of the same point of view.

[49] In has been noted that the First Plaintiff has a town allotment of his own and that the Second Plaintiff is the heir presumptive to that allotment. This is not therefore a case where the assertion of the registered owner's right to possession would result in the Plaintiffs being rendered landless.

[50] To summarise, I do not find that the land was unavailable to accrue to the First Defendant either by inheritance or grant or re-grant because I do not find that the Plaintiffs have shown that they have any continuing rights of occupation. Although I will not attempt precisely to define the arrangement reached between Lisiate, Siu, Siosi'ana and the First Plaintiff, I am satisfied that its purpose, as envisaged, has been served.

[51] As will be seen from the written submissions, extensive technical arguments were advanced to show that the Ministry had or had not, the power to transfer the land in the way it did. Since I have reached the conclusion that the Plaintiff's right to remain on the property cannot prevail against the order of possession sought and because there is no challenge to the registration by 'Aisea Junior, I do not think that a finding in law on what I take to be essentially a peripheral issue is required. I do however think some observations are warranted.

[52] The procedure followed by Mateline, 'Aisea Junior and Soane (with the apparent approval and indeed encouragement of the Ministry of Lands) seems to me to be closely similar to the kind of practice referred to by Mr Niu and accepted by Mr Kefu in Tafa v Viau [2006] To. L.R. 125, 137:

"... submissions [were made] regarding the practices that had developed over the years in relation to the surrender of allotments. He made the point that although the allotment surrendered by the allotment holder from Crown land will revert to the Crown, the Ministry of Lands, in consultation with the ex-holder will ensure that the allotment is then granted to the person nominated by the ex-holder."

Apart from the fact that Section 54 does not provide for the land to revert to the Crown unless there is no heir, this practice seems to come dangerously close to the kind of understanding which appears to have been ruled out by the Court of Appeal in Vailea (paragraph [47] above).

[53] Secondly, where what is happening in fact is the divestment by a holder of his right, it seems surprising to me that by simply calling what is occurring a "waiver", the conditions appertaining to surrenders and re-grants can be circumvented.

[54] Thirdly, Mr Niu appeared to be suggesting that the claim and reversion provisions of the Act were automatic and strictly time- dependent (see, in particular, paragraph 24 of the Plaintiff's first submissions). In my, admittedly brief, experience of how the Land Act works in practice and has been accepted to work, this is not the case. To cite merely one example among several other examples of administrative delay already referred to, we know that although Mateline lodged her claim in March 2005 she had still not been registered as the owner of the land by the time she waived her interest, just under a year later. Although there appears to be no provision for it in the Act, I cannot imagine that 'Aisea Junior's claim would be time barred simply because he allowed his mother to advance her claim first and then withdraw it. The provisos to Sections 80 and 82 have already been noted and seem to reflect the fact that possession is frequently considered to be rightful without the formalities for registration having been completed.

Result

[55] This action is only directly concerned with the First Defendant's right to retain his registration as the holder of the land and the Plaintiff's rights to remain in occupation. I am not satisfied that the Minister has been shown to have acted in a manner which has defeated the legitimate claims of the Plaintiffs. Accordingly, the Plaintiffs' claim must be dismissed and there must be an order for vacant possession. The precise terms of this order will be left for further argument, if not agreed.

[56] This action is not directly concerned with the future of the buildings erected on the land by the Plaintiffs or the amount of compensation which should be paid for them, if they are not removed. In the words of Hill J in Palu v Bloomfield (above):

"This is another example of those unfortunate cases which are too frequent here, where somebody says to a friend "come along and build a house on my allotment" and then things go wrong and the person who built the house finds that they have no right to stay on the land."

In Palu v Bloomfield the Defendant was required to remove her house from the land. In the present case that is not reasonably possible. Soane will acquire a desirable piece of land to which will have been added, by the efforts of the Plaintiffs, a pleasant house and outbuildings. It would obviously be inequitable for the Plaintiff to lose the whole of his investment (made on behalf himself, Siosi'ana and the children) without reasonable compensation.

DATED: 17 August 2012.

PRESIDENT

N. Tu'uholoaki
17/8/2012.