Latu v Blake [2014] TOLC 5; LA 12 of 2013 (3 July 2014)

IN THE LAND COURT OF TONGA
NUKU'ALOFA REGISTRY

LA 12 of 2013

BETWEEN:

1. KALOLAINE LATU
2. MINI LATU
3. SIOSI'ANA WOLFGRAMM
Plaintiffs

AND

1. ROBERT BLAKE
2. CHURCH OF JESUS CHRIST OF LATTER DAY SAINTS
3. MINISTER OF LANDS
Defendants

BEFORE THE PRESIDENT AND MR. ASSESSOR SINILAU TOUMO'UA

Plaintiffs in person.
R. Stephenson for the First Defendant.
L.M. Niu SC for the Second Defendant.
A. Kefu SC for the Third Defendant.

JUDGMENT

1. On 17 June 2011 following Cabinet approval, the Second Defendant (the Church) was granted a 50 year lease of a piece of land having an area of about 2 acres, situated at Kolofo'ou.
2. The land leased to the Church was originally part of a town allotment with an area of 2 acres 3 roods and 2 perches of which the registered holder was Siaosi P. Niualiku (aka George Blake) but which part was surrendered by him to the Crown in 2007 with the intention that it then be leased to the Church.
3. Siaosi inherited the land from his father 'Isileli in about 1965. Siaosi was the eldest of a number of brothers and sisters including the Plaintiffs. Siaosi died in April 2010 and the First Defendant then inherited the unsurrendered balance of the land.
4. This is a claim by the Plaintiffs to set aside the lease granted to the Church. The Plaintiffs were not represented (after the writ was issued) but had the help of a nephew Sifa Taumoepeau who, in the interests of justice, was granted considerable latitude by the Court and who filed submissions on their behalf. The "inequality of arms" between the parties did not make the consideration of the issues any easier.
5. In September 1999 and again in August 2001 the Plaintiffs wrote to the Third Defendant (the Minister). In these letters the Plaintiffs put the case which essentially remained the same as put to the Court during the trial. It may be summarised as follows.
6. The Plaintiffs say that they were born on and grew up on their father's allotment. Their father `Isileli wanted the family to stay together. He had the idea to divide up the land so that his sons and daughters (and their husbands) would each have a part. It appears that a plan was drawn up and two versions of such a plan were attached to a document filed on 23 October 2013 entitled "Statement of Claim to refute Strike Out Claim by Second Defendant".
7. In about 1941 Siaosi immigrated to New Zealand, married and had children, including his son Robert, the First Defendant. During the course of the following years Siaosi's sisters, including the Plaintiffs married and left the land. Eventually they too immigrated to the USA. One of the sisters, Hone built a house at the stadium end of the land on the portion which was not surrendered. This is where she still lives. Siosi'ana and her husband built a house on part of the surrendered land however it was later destroyed by fire.
8. The Plaintiff's mother had died in 1950 and so, when 'Isileli died in 1965, the whole allotment was claimed by his son Siaosi. Apparently he took little interest in the rest of the family or in the land which began to "look abandoned". According to the Plaintiffs, they travelled to New Zealand and spoke to their brother. They asked him to honour their father's wishes and allow them the pieces of land which they had been promised. Siaosi refused. If they wanted a part of his land then they would have to pay for it; if they refused to pay him then "I [will] leave everything to my son".
9. No reply by the Minister to the Plaintiff's letters was disclosed and the next development appears to have been an agreement reached between Siaosi and the Church in December 2001 in which Siaosi and his heir apparent Robert agreed to surrender two acres of Siaosi's land to the Crown in consideration of payment by the Church of TOP$575,000. In August 2007 the 2001 agreement was replaced by a second agreement to the same effect in consideration of payment of TOP$819,375.
10. The Plaintiffs advanced five principal arguments. It was submitted, first, that Siaosi became a New Zealand citizen and therefore was not eligible to inherit the land from his father or to surrender it to the Crown. In paragraph 2 of his final submission Mr Taumoepeau stated that Siaosi's citizenship status "needs to be confirmed satisfactorily". This issue was also raised in paragraph 12 of the Statement of Claim filed on 19 June 2013 where it was pleaded that "it is more than likely that Siaosi obtained New Zealand citizenship" at a time when there was no provision for dual nationality. Apart from those submissions, there is no evidence to support the allegation. On the contrary, there is evidence, including a Tongan passport issued to him in 2000 and valid until 2005 which states that Siaosi was a Tongan subject and a permanent resident of New Zealand. On the evidence before me I find that Siaosi did not lose his Tongan citizenship. Since it was Siaosi, and not his son Robert, who surrendered the land to the Crown, Robert's right to inherit the unsurrendered balance of the land is not relevant to the issues now before the Court.
11. Secondly, it was suggested that the agreement between Siaosi and the Church was prohibited by Clause 104 of the Constitution and Section 12 of the Land Act which prohibits sales of land "out-and-out". In my opinion Kaufusi v Taunaholo [1981-1988] Tonga LR 70, Finau v Alofaki [1989] Tonga LR 67 and Piukala v Fonohema [2002] Tonga LR 200 are all authority to the contrary. No proprietary interest passed directly from Siaosi to the Church at any stage.
12. Thirdly, the Plaintiffs submitted that the effect of the grant of the lease was that the Church became the holder of more than five town allotments contrary to Section 61(2) of the Act. In my view, however, the Church does not hold a lease of a town allotment or any part of a town allotment. It holds a lease of land which, prior to its reversion, was part of an allotment. The part that was not surrendered is still a town allotment; however the part that was surrendered ceased to be an allotment on surrender and reverted to mere Crown land status.
13. In their testimony the First and Third Plaintiffs stressed their belief that their father's wishes had given them each an entitlement to part of the land and that these entitlements should have been recognised by the Minister before he recommended that the land be leased to the Church. They emphasised that this was family land upon which they had all been brought up. They never intended to leave Tonga permanently but now that the land had been given to the Church, they had nowhere to return. One would have to be exceptionally hard-hearted not to be moved by the Plaintiff's prayers and the Court felt considerable sympathy for them. The problem however, is that they do not have the law on their side.
14. During his lifetime 'Isileli could have moved to translate his dream of one big extended family living together on the land into a long term legal reality. He could have applied to grant leases to the Plaintiffs under Section 56 of the Act. Such grants would of course have required Cabinet approval. He could, with the consent of his heir, have given undertakings that would have bound both himself and Siaosi, for example, to allow the Plaintiffs to stay on the land for their lifetimes. The difficulty for the Plaintiffs is that there is no evidence that he took any steps to have leases granted to them or that he secured Siaosi's agreement to his proposal. Such evidence as there is, suggest the opposite. It is apparent that Siaosi wanted the whole of the land for himself (although for a price he might be prepared to part with some of it). There is indeed some evidence to suggest that the First and Third Plaintiff's acted on their father's representations which fairly plainly were made, but they themselves then left the land in Tonga and settled overseas.
15. After Cabinet's approval was obtained to the surrender of the land that fact was published in the local press in a Section 54 Notice which required any persons claiming to be heir to the land to lodge that claim prior to 16 August 2008, failing which the land would revert to the Crown. According to an Appendix 2 to "Final Submissions" filed by Mr Taumoepeau, several applications were received by the Ministry in the following twelve months. Examination of Appendix 2 however reveals that none of these was an application by a person claiming to be the heir. In paragraph 3 of his "Final Argument" Mr Taumoepeau asserts that an unnamed son of one Tame Niualiku (said to have been the elder brother of Siaosi) may be the person entitled to inherit, however this person did not appear at the trial, took no part in the proceedings and is not a name included in the list of persons who had applied for a grant in the months following the advertisement.
16. Mr Taumoepeau also exhibited copies of applications for grants of part of the land received in 2004. According to the Registrar of Lands, these applications were defective. Furthermore, they were made before any part of the land was surrendered by the registered holder.
17. It is most unfortunate that the applications referred to in Appendix 2 are said to have been lost. It is however clear enough that six of them can have only have been applications for leases of part of the land or, in the case of male applicants for grants of allotments to them carved out of the surrendered land. The seventh applicant was Hone Taumoepeau who, as has already been seen, is living on the unsurrendered part of the land. The eighth applicant was the Church. According to Appendix 2, none of the Plaintiffs is named and therefore the Minister's decision not to accede to the requests of the six applicants but instead to recommend the grant of a lease to the Church cannot assist them.
18. On 28 July 2008 Mr Corbett, then acting for the Plaintiffs and other members of the family, also wrote to the Minister. He referred to the wishes of 'Isileli, to work that had been done by some of the claimants on the land and asked for it to be divided up into ten lots, one each of the Plaintiff, their sister Hone and several nieces and nephews including Mr Taumoepeau. Across the top of the letter is what appears to be the Minister's endorsement:
    • "Please write and inform Corbett that it would be appropriate for them to discuss with the land owner and then inform us of what they agree on and we can action accordingly".

When this was written by the Minister the landowner was still Siaosi who, of course, was waiting for the balance of the TOP$819,375 to be paid to him by the Church. Not surprisingly, no agreement was reached between Siaosi and his sisters, nieces and nephews, despite several meetings between the parties or their representatives being held by the Minister or officers of the Ministry.

19. Unfortunately, the Court was not told why the Church's formal application for a lease to be granted to it which was filed in August 2007 was not submitted by the Minister for approval by Cabinet until April 2011. Cabinet approved the grant in May 2011 and the lease was issued in June. It appears that the family's claims may have given the Minister pause: one of the documents produced by Mr Niu is a Notice of Discontinuation dated 22 June 2011 filed in LA 6 of 2009 in which the Church, as the First Plaintiff, Siaosi, his wife and son Robert Blake as Second, Third and Fourth Plaintiffs advised the Court that their action against the Minister had been settled. The lease had been issued four days previously.
20. The Plaintiffs claim that the Minister erred in law in not recognizing the claims of the family and in not honouring wishes. As already seen, it is my opinion that these claims were not maintainable in law. While it might have been happier, more charitable even, for the Minister to have divided the land between the claimants rather than granting it to the Church, the Court is satisfied that the Plaintiffs have not shown that there was any error of law in the Minister's approach. The Land Court, in any event, has no jurisdiction to review the Minister's decision so long as it was reached, as was the case here, after due consultation and was not, on its face, wholly unreasonable.
21. Before the leaving the matter I wished to refer to a document entitled "Amended Statement of Claim" filed on 30 October 2013. This document (complete with excisions, amendments and additions all underlined in red) was met by a second document entitled "Reply of Second Defendant to Statement of Claim to refute strike out claim by the Second Defendant". In fact, as appears from the second document, it is actually, apart from the first paragraph, a joinder with the "Amended Statement of Claim". The "Amended Statement of Claim" was not drafted by the Plaintiffs but was actually prepared and filed by counsel for the Second Defendant. While not for one moment are the bona fides of counsel doubted, the filing of this document by counsel for the Second Defendant on behalf of the Plaintiffs was, in my view, wholly improper.

Result:

The Plaintiffs' claim is dismissed.
I will hear counsel as to costs.

DATED: 3 July, 2014
PRESIDENT