Cotty Pasifiki Tonga v Schaumkel [2013] TOLC 11; LA 27 of 2010 (20 August 2013)

IN THE LAND COURT OF TONGA
NUKU'ALOFA REGISTRY

LA 27 of 2010

BETWEEN

COTTY PASIFIKI TONGA
Plaintiff

AND

'EMA LOISE SCHAUMKEL
Defendant

AND

THE MINISTER OF LANDS
Second Defendant

BEFORE THE PRESIDENT AND MRS. ASSESSOR KAVALIKU

W. Edwards for the Plaintiff
No appearance by the First Defendant
'A. Kefu (Solicitor General) for the Second Defendant

JUDGMENT

1. In October 1966 Viliami Lolo Veilomani (Viliami) was registered as the holder of a town allotment at Mailetaha, Kolofo'ou consisting of 1 Rood 14.3 perches in Book 186, Folio 88.
2. It appears that Viliami and his younger brother Nafetalai Pasifiki Tonga (Nafetalai) had lived on the land for some years with their parents before the land was registered in Viliami's name.
3. Viliami and Nafetalai both married. Viliami had a daughter, the First Defendant, but no son. Nafetalai had a son, the Plaintiff.
4. According to the Plaintiff, Viliami and Nafetalai agreed in about 1975 that a new house be built on the land of their parents since their parent's house had fallen into disrepair. In order to pay for the house, a loan was taken from the Bank.
5. The Plaintiff told the Court that Nafetalai began building the house which he completed in 1977 and that he repaid all the loan. Viliami and the First Defendant left the land in about 1974 or 1975. In due course, Viliami became a naturalized New Zealand citizen, while the First Defendant eventually took U.S. citizenship. Unfortunately, the dates on which these events occurred were not disclosed.
6. The Plaintiff's evidence was that Nafetalai left the land in 1997 and moved to Kolomotu'a where he has his own town allotment. The Plaintiff remained in the house which his father had built. In about 1999 Viliami returned briefly to Tonga and visited the land. He told the Plaintiff that he had no heir and promised the land to him. He also recommended that the rear portion of the land be filled in with gravel. This and other improvements were done at the Plaintiff's expense.
7. The Plaintiff told the Court that he was aware that Viliami and Nafetalai had not agreed about the future of the land but that was only what he had been told. He was not present at their meeting. Despite the disagreement he and his wife and five children remained in occupation of the house-and they also made use of the of the land, adjoining the road, where the house stood.
8. On 5 March 2010 the First Defendant applied to the Minister of Lands for the grant to her of a lease over a 24 perches portion of the land. The portion which she sought was that portion upon which the Plaintiff's house was standing. In notes, however, of a meeting between the First Defendant and the Minister on 3 March 2010, (Document D3/4) no mention is made of this fact. The First Defendant's application, Document D5, bears the following remarks:
   • "This is part of the allotment of Veilomani which has reverted to the Crown because he became a foreign citizen".

This is consistent with the opening remarks of the Minister at the meeting on 3 March.

9. On 17 March 2010 Cabinet approved the Minister's recommendation that the First Defendant be granted the lease that she was seeking. I was told by Mr Kefu that the deed of lease has yet to be perfected. In this action the Plaintiffs seek orders to annul the grant of the lease to the First Defendant and to allow him to remain on that portion of the land currently occupied by him, with legal title. Mr Edwards indicated that the Plaintiff would have no objection to the rear (and larger) portion of the land being leased to the First Defendant.
10. The Plaintiff told the Court that in August 2010 he himself applied for the grant to him of the same front portion. A copy of the application, to which he has yet to receive a reply, is Document D9. According to the Plaintiff, he received no notice from the Ministry that it took the view that the land had reverted to the Crown and the first indication that the Defendant had applied for the lease was when the Ministry surveyor arrived onto the land sometime in 2010. The Plaintiff told the Court that he had never been notified of the First Defendant's application and he had never been given an opportunity to explain his position and in particular to explain that the portion of the land that the First Defendant was seeking was land that he and his family had being occupying since his birth and that the house that was built on the land and in which they were living had been built by his father and extended by him. In the Plaintiff's opinion it was unfair that the portion of the land now being used by him was to be given to his cousin, the First Defendant.
11. The First Defendant did not appear and therefore there was no evidence in support of the defence filed by her in January 2011. The only other evidence called was that of Waric Vea, of the Ministry of Lands.
12. Mr Vea confirmed that no lease in favour of the First Defendant has yet been granted. He told the Court that he did not know whether the Minister knew that the Plaintiff was occupying that portion of the land that the First Defendant was seeking. According to the papers, there was nothing to suggest that any inquiries were made about the Plaintiff's house. Mr Vea accepted that no notice was given to the Plaintiff that the land was deemed to have reverted to the Crown and that no notice was given to the Plaintiff that it was proposed to grant a lease over his part of the land to the First Defendant. Mr Vea explained that the First Defendant's application was viewed favourably since she was the only surviving child of the last holder of the allotment. He also explained that a lease would not normally be granted until at least twelve months had elapsed since the death of the last registered holder. In this case, however, the Ministry took the view that the land had reverted to the Crown, without an heir, and therefore the twelve months period did not apply.
13. In his very helpful closing written submissions, Mr Edwards pointed out that there was nothing to contradict the Plaintiff's assertion that he had lived on the land all his life and that he was living in a house built and paid for by his father and added to by himself. The First Defendant, on the other hand, had left the land in 1974 and now, after taking US citizenship, wished to disposess him. That, in Mr Edward's submission, was quite unfair. This only sensible solution was for the First Defendant to be given the rear (and larger) portion. The agreement by Cabinet to grant her a lease would still stand, only the portion of the land to be leased to her would be varied.
14. In answer, Mr Kefu suggested that the Minister and Cabinet's decision to grant part of the land to the First Defendant was correct in principle. The land had reverted to the Crown after Viliami took New Zealand citizenship and prior to that reversion the Plaintiff had been a mere licensee of Viliami. Mr Kefu did, however, accept that had the Minister known the facts now proved by the Plaintiff, he might have come to a different conclusion. Mr Kefu suggested that the Court simply recommend to the Minister that he reconsider his recommendation to Cabinet.
15. As already mentioned, it is unfortunate that the date upon which Viliami took New Zealand citizenship was not disclosed. It is therefore not known when, in law, the land reverted to the Crown. Depending on the date of reversion, it seems at least possible that the Plaintiff may have acquired a right to the land by adverse possession. In my view, however, the central weakness in the case of the First and Second Defendants is that prior to approving the grant of a lease to the First Defendant almost no and certainly no sufficient enquiries were made by the Ministry to establish whether in fact that portion of the land being sought by the First Defendant was available to be granted to her.
16. Had the Ministry made such reasonable enquiries as are now required by the rule in Tafa v Viau [2006] Tonga LR 287 CA it would have become quite clear that the Plaintiff was claiming a legal right to remain where he was, in other words, the Plaintiff's case was that the land was not available to be leased to the First Defendant. What precisely the basis of the Plaintiff's claim might have been is not now before the Court for enquiry, all that a Plaintiff has to prove in these circumstances is that he was given no opportunity to present his claim to the Ministry before a decision to disposess him was taken.
17. The Plaintiff succeeds. The decisions approving a grant of a lease to the First Defendant over the front portion of the land must be set aside. The Plaintiff is entitled to have his August 2010 application dealt with without further delay. In my view Section 82 (e) of the Land Act is not relevant. In view of the agreement that the rear portion be allocated for lease to the First Defendant, counsel may be able to confer to establish whether the parties' applications can be amended so as to be consistent with each other.
18. In my opinion the First Defendant did no wrong in applying for the lease; the error which led to this action was the Ministry's failure to comply with the rule in Tafa v Viau. In the circumstances there will be no order for costs against the First Defendant but the Plaintiff is to have his costs against the Second Defendant, to be taxed if not agreed.
    

NUKU'ALOFA: 20 August 2013
PRESIDENT

N. Tu'uholoaki
20/8/2013