Manu v 'Aholelei [2015] TOLC 5; LA 13 of 2014 (17 April 2015)

IN THE LAND COURT OF TONGA
NUKU'ALOFA REGISTRY

LA 13 of 2014

BETWEEN:
MANAPO'ULI MANU

Plaintiff

AND :
FEANGAI 'AHOLELEI

Defendant

AND :
MINISTER OF LANDS

Third Party

Heard : 3 and 4 March 2015
Ruling : 17 April 2015
Appearances : Mr. 'O. Pouono for the plaintiff
Mr. L. Niu SC for the defendant
Mr. 'A. Kefu SC and Ms Sela Aleamotu'a for the third party

RULING

Introduction

[1] The plaintiff, Manapo‟uli Manu (Manapo‟uli), is the holder of a registered lease No 8451 dated 15 November 2013 for a term of 50 years over an allotment with an area of 30.3 perches at „Alaivahamama‟o By-Pass Road. The allotment is part of the Crown estate.

[2] The defendant, Feangai „Aholelei (Feangai), her children and her husband (until his death) have occupied the allotment since 2001; that is for 14 years.

[3] In reliance upon her lease Manapo‟uli is seeking an order evicting Feangai and her family from the allotment. Feangai refuses to vacate and says that Manapo‟uli‟s lease was not validly granted. Feangai has filed a defense and a counterclaim and seeks an order declaring that the lease is invalid and directing the third party, the Minister of Lands, to cancel the registration of the lease.

The facts

[4] Nafetalai „Aholelei (Nafetalai) was born on 26 August 1928. He married Lavi Emily Paea (Emily). Together they had ten children. There were seven boys and three girls. Tevita „Aholelei (Tevita) was their eldest child, born on 15 August 1948. Fine „Aholelei (Fine) was the seventh child and the fourth of the seven boys. Tevita is still alive but Fine died in 2010.

[5] Manapo‟uli is one of Tevita‟s daughters. Feangai was Fine‟s wife. The main protagonists are therefore niece and aunt by marriage.

[6] In the 1960‟s Nafetalai had a court case over a property on Railway Road, Kolofo‟ou. He lost the case. It appears that the then Minister of Lands decided to give Nafetalai an allotment at „Alaivahamama‟o By-Pass Road in substitution for the one he lost. This became known as Lot 3 on Plan 2058 and is the subject of this proceeding. Throughout the hearing the allotment was referred to as being at Pahu, Kolofo‟ou.

[7] The allotment was swampy but Nafetalai built a shelter and his family moved onto the allotment in around 1964/65. I understand that seven of his 10 children were born there.

[8] Tevita married in 1972. After his marriage he lived at Halaleva and then Ma‟ufanga but spent long periods away from home working at sea.

[9] Nefatalai made an application to the Minister for the grant of the allotment in 1974. The allotment had been surveyed in the early 1970s. Nafetalai‟s application satisfied all the requirements of the Land Act. The application was in the prescribed form. He had produced his birth certificate and a poll tax receipt and paid the survey fee. He also provided a letter from the town officer stating that he had built and was living on the allotment.

[10] The Minister did not ever sign a deed of grant of the allotment to Nafetalai but there is compelling evidence that the Minister did allocate the allotment to him. I do not accept the submission for the Minister that the evidence on this aspect was scant. The name Nafetalai „Aholelei has been written indelibly on Lot 3 on Plan 2058. The names of other persons to whom allotments had been allocated appear on their respective allotments. An unsigned deed of grant in the name of Nafetalai was prepared. It is not known why the deed of grant was not signed by the Minister but the uncontested evidence was that the Minister had made a decision to grant the allotment to Nafetalai in 1980. It was certainly not later allocated to anyone else. It would only have been on the Minister‟s instructions that names would be written on the Plan and the deed of grant prepared after a decision to allocate the allotment was made by the Minister.

[11] Nafetalai and Emily moved to Niue and then later to New Zealand. Nafetalai spent about eight years in Niue, returned to Tonga briefly in 1982 and then spent 25 years in New Zealand before his death in 2007.

[12] Fine and Feangai married on 6 January 1982. Before the marriage Fine was living on the allotment with Nafetalai‟s third son, Sione, and Sione‟s wife and children. After their marriage Fine and Feangai lived on adjoining land. After about two months they shifted to live at Ha‟ateiho.

[13] In about May 1982 Nafetalai and Emily returned to Tonga and lived on the allotment with Sione and his wife. Fine and Feangai also moved back to the allotment at that time. Sione and his family then moved to Sione‟s own allotment at Tofoa and Nafetalai and Emily moved to New Zealand. Fine and Feangai nailed up the shelter and went back to

Ha‟ateiho. The shelter was removed by some unknown persons in around 1983. There is no evidence that anyone lived on the allotment again until 2001.

[14] In about 2001 Fine and Feangai moved back to live on the allotment. The impetus for this was that Nafetalai telephoned Fine and directed him to make the allotment his own. It must be the case that Nafetalai intended that Fine use the land for a home for himself and his family. With the exception of Fine and Sione all of Nafetalai‟s sons, including Tevita, had moved to New Zealand and did not intend to return to Tonga. Sione had his own allotment at Tofoa. Fine had no allotment of his own.

[15] The allotment was very overgrown and it was still swampy. Fine and Feangai set about clearing the allotment, filled it to make it dry and built an iron shed which they occupied initially. They later built a substantial two storey house which was completed in around 2005.

They converted the shed into a workshop for Fine to work in.

[16] Feangai said that the cost to fill the land was about T$10,000 and the cost to build the house was about T$90,000. The exact figures do not matter. A lot of time, effort and money were expended by Fine and Feangai as a result of Nafetalai‟s direction that they make the allotment their own.

[17] Manapo‟uli saw that Fine and Feangai had filled the allotment, had erected a small engineering workshop and were running a business from it. Later she saw that a two storey house had been built. She said that this was during „Nafetalai‟s time‟ which must mean prior to his death in 2007. She wondered how it was possible for a younger son to build on land that belonged to the eldest; referring it appears to Tevita‟s status as Nafetalai‟s heir. She said she could not recall if she spoke to Tevita about this.

[18] Following Nafetalai‟s death in New Zealand on 28 November 2007 neither Emily nor Tevita (as part of her widow‟s estate or as Nafetalai‟s heir respectively) made any claim to the land. There was no evidence that Emily is still alive or, if not, when she died. When asked why he did not claim the allotment after Nafetalai‟s death, Tevita said that he had health problems that prevented him from coming to Tonga. However, Manapo‟uli said that Tevita asked her to go to the Land Office and check the status of the allotment. She said that she did this and reported back to Tevita. Manapo‟uli said this occurred some years before Tevita came to Tonga which was in September 2013. In his evidence, Tevita said he did not know that the allotment had never been registered in Nafetalai‟s name until he came to Tonga in September 2013. That seems unlikely if Manapo‟uli did investigate the status of the land on his instruction. She also discussed the allotment with Tevita before he came back to Tonga. Tevita was, in my view, aware that the allotment was not formally registered to Nefatalai before September 2013.

[19] Fine died in 2010. After Fine‟s death Feangai remained living on the allotment with her children. No one challenged her right to live on the allotment. She continued to live there totally undisturbed as she had since 2001.

[20] Despite doing nothing to claim the allotment following Nafetalai‟s death Tevita clearly regarded himself as having some entitlement to it. At some stage Tevita and Manapo‟uli reached an agreement with respect to the allotment. Manapo‟uli‟s understanding of the agreement was that Tevita would apply for the allotment and then surrender it to her. Manapo‟uli spoke to Tevita about the fact that Feangai and her children lived on the allotment and their intention was that Fine and her family could remain there and Manapo‟uli would develop the front part of the allotment. In his evidence, Tevita added that Manapo‟uli intended to build a house on the allotment in front of Feangai‟s house. This is something Manapo‟uli had not mentioned in her evidence. All of this was discussed and agreed between Tevita and Manapo‟uli with no input from Feangai. Manapo‟uli then travelled with Tevita to Tonga in around September 2013 with the intention of claiming the allotment.

[21] As things developed Tevita did not apply for a grant of the allotment as Nafetalai‟s heir. Why he did not do so was not explored in the evidence. On 11 September 2013 Manapo‟uli applied to the Minister for a lease of the allotment. The application was accompanied by a letter signed by Tevita but prepared by Manapo‟uli‟s husband, Melielau Manu. The letter stated that as no claim had been made by Nafetalai‟s widow or Tevita as his heir, the allotment had reverted to the Crown under section 87 of the Land Act. It went on to say as follows:

"I am the heir (Tevita „Ofa Ki Falefakauo „Aholelei – Heir) and I have two brothers and no son. But the reason I am bothering you, is to show and to ask that I genuinely consent to my daughter, Manapo‟uli „Aholelei leasing this piece of land."

[22] There were a number of aspects of the application and letter which were examined at the hearing. In her application Manapo‟uli used her birth name „Aholelei and not her married name of Manu (being the name under which she commenced these proceedings). She gave her address as being at Hola By Pass Road, Pahu when she lived at Ma‟ufanga. In his letter in support of the application, Tevita also gave his address as being at Pahu when he did not live there. There was no mention made in the letter that the allotment was occupied by Feangai and her family, or that she and Fine had filled the allotment and had built a two storey house on it. Mr. Niu submitted that this was all deliberate and intended to mislead the Lands Office to avoid the possibility of any inspection and the identification of competing claims. I do not consider that I am required to decide if that was so on the issues raised in the pleadings.

[23] On 28 October 2013 a brief to the Minister of Lands was prepared with the recommendation that a decision be made to approve the grant of the lease and submit it to Cabinet. The brief was misleading. It indicated that a site inspection had been carried out when that was not the case. Importantly also, due to the positions the parties have taken, in the comments section of the brief it was noted that the allotment had been granted to Nafetalai as follows:

"The subject land was granted for Nafetalai „Aholelei but not yet register (D/G 110/98). He passed away on 28.11.2007."

[24] Things then moved swiftly. The lease application was approved by Cabinet on 1 November 2013. On 11 November 2013 the Minister approved the lease application. On the same day the Minister issued a direction for a survey of the allotment to be completed. The lease was granted to Manapo‟uli on 15 November 2013.

[25] There is a dispute between the parties as to when Feangai was told of Manapo‟uli‟s and Tevita‟s intentions to make a claim on the allotment. There was a meeting on the allotment between Tevita, Melielau and Feangai but there was no agreement as to when this occurred and what was said. I hesitate to delve deeply into this because in my view it cannot alter the result of the case. What is clear to me is that Feangai was told at this meeting that there was a „Chinese‟ who wanted to run a business at the front of the allotment. She objected to that and said that Tevita should pay her for all her expenses for filling the land and building the house and she would leave and go back to Ha‟ateiho. Tevita told her no one would move her from the land but did not tell her that Manapo‟uli had or intended to apply for a lease. Feangai only discovered this in April 2014 when a container was delivered to the allotment.

[26] The arrival of the container is explained by the fact that having been granted the lease Manapo‟uli had negotiated with one Semisi Pomale to grant him a sublease of an area at the front of the allotment. He then took steps to occupy that part of the allotment. On 23 April 2014 an application was made to the Minister of Lands by Semisi Pomale for the grant of a sub-lease. When Feangai objected these proceedings were filed against her to evict her from the land.

[27] Feangai‟s daughter, Mavaetangi Matakaiongo, then went and spoke to Mr. Moala at the Lands Office. She said that upon his advice an application was made by Feangai‟s son, also called Fine, for a lease of the allotment. That application was made on 26 May 2014. Both the application for sublease by Mr. Pomale and the application for lease by Fine have not been processed awaiting the outcome of this litigation.

The submissions and issues

[28] Manapo‟uli and the Minister of Lands adopted similar positions. They argue that Nafetalai was never the registered landholder of the allotment and therefore did not have the authority to grant a license to Fine and Feangai to occupy it. Alternatively, they submit that Feangai‟s right to occupy the land must have come to an end upon Nafetalai‟s death. On that basis it was argued that at the time the lease was granted Feangai was unlawfully occupying the land and was no more than a squatter so that the Minister did not need to consider her development and occupation of the land when granting Manapo‟uli the lease. They submit that the lease was validly granted in these circumstances.

[29] There is a very late submission for the Minister that Nafetalai did not have authority to allow Fine and Feangai to occupy the allotment as he had abandoned the allotment when he moved to Niue and New Zealand in 1982.

[30] It was accepted for the Minister that if Fine was found to have been occupying the land lawfully then the Minister was obliged to consider her occupation and development of the land and the lease "can be cancelled".

[31] Feangai argued that Nafetalai was the lawful and registered holder of the allotment and had granted Fine and Feangai (and their children) the right to occupy the land. It was submitted that the right to occupy did not terminate upon the death of Nafetalai but continued until the Crown terminated that right expressly or by necessary implication by granting the allotment to another person. It was further submitted that the decision of the Minister to grant Manapo‟uli a lease was invalid as being in breach of the rules of natural justice and in circumstances where there was an impediment to the grant of the lease, namely the work of filling the allotment by Feangai and Fine and the presence of

the two storey house and the fact and duration of Feangai‟s occupation of the land.

[32] The matters in dispute between the parties can be resolved by a consideration of the following issues:

• [32.1] Was Nafetalai the lawful holder of the allotment able to grant Fine and Feangai the right to occupy the land?
  
• [32.2] Did Nafetalai abandon the allotment in 1982?
  
• [32.3] Was Feangai occupying the allotment lawfully after

Nafetalai‟s death?

[32.4] What is the nature of the Minister‟s functions and duties when making a decision to grant a lease?

[32.5] Was the decision of the Minister to grant the lease to Manapo‟uli made lawfully?

[32.6] If the Minister‟s decision to grant the lease was unlawful what relief (if any) should the Court order on the parties‟ respective claims?

Was Nafetalai a lawful holder of the allotment?

[33] The relevant provisions of the Land Act are the definition of „landholder‟ or „holder‟ in section 2 and sections 3 and 4 which provide as follows:

"landholder" or "holder" means –

"(a) as regards Crown Land the Minister of Lands;

(b) any Tongan subject holding an hereditary estate (tofia), a tax allotment (api tukuhau) or town allotment (api kolo);

(c) any Tongan subject claiming to be interested in land which he is legally capable to hold;

(d) any trustee duly appointed by the King, the Minister, or the Court on behalf of any person entitled to succeed to any land on reaching the lawful age of succession in respect of such land;

(e) any person appointed as or acting as trustee or representative for any person beneficially entitled to any land or interest in land;

(f) any person who claims to be entitled to any land or interest in land whether in actual possession or occupation or otherwise."

Section 3:

"All the land of the Kingdom is the property of the Crown."

Section 4:

"The interest of a holder in any hereditary estate, tax allotment or town allotment is a life interest subject to the prescribed conditions."

[34] The Minister relies on Folau Tokotaha v Deputy Minister of Lands and anor [1923-1962] Tonga L.R. 159 as authority that a deed of grant confirms ownership and legal title to land. It is argued that while Nafetalai was granted and allocated the allotment he never perfected his title by registration and could not have authority to grant a license to Fine and Feangai to occupy the land. I do not accept that submission. The Land Act does not make registration the test of ownership and the intention of the Act is that registration is a method of proof of ownership and nothing more. (Lisiate and anor v 'Eli and ors [AC 23 of 2011, 27 April 2012] distinguishing Folau Tokotaha and quoting with approval from the decision of Hunter. J in Fifita Manakotou v Vaha'i (Noble) Volume II Tonga L.R. 121, 123.) Relevantly, because of the parallels with this case, in Lisiate the Court at paragraph [31] said as follows:

"It is true that the Minister must grant an application. It may in our view be properly inferred that the Minister did so in around 1963. The evidence that supports this conclusion is the detail included in the register of tax allotments which is a register kept by the Minister‟s department. In fact the very existence of the record in this register along with the inclusion of the uncompleted deed in the Register of deeds suggests strongly that a deed may have been issued at that time and subsequently lost. Whether or not that was the case we are satisfied that Siuaki was the lawful holder within any of the three meanings set out in [subparagraphs (b), (c) and (f) of the definition of landholder or holder in section 2 of the Land Act] at the time of the death of his mother in 1984."

[35] I also do not accept the submission for the Minister that Lisiate is distinguishable as being concerned with „possession‟ under section 84 of the Land Act and not the "more important issue" of legal title. The Court identified the issue that it was concerned with as whether one Siuaki was a holder and owner of land. It followed from the fact of his ownership that he also „possessed‟ the land in terms of section 84 (see paragraphs [30] and [31] of the judgment in Lisiate).

[36] It follows from my factual findings in paragraphs 6, 7, 9 and 10 that Nafetalai qualified as a holder of the allotment under subparagraphs (b), (c) and (f) of the definition of „landholder‟ and „holder‟ in section 2 of the Land Act and was also the owner, although not registered as such.

Did Nafetalai abandon the allotment?

[37] This was raised by the Minister for the first time in the written submissions and then in a very brief manner. The submission is one sentence. I do not consider it would be proper to allow the Minister to raise this issue now. The submission is contrary to the Minister‟s principle pleading that Nafetalai was never the lawful landholder of the allotment. Had this been pleaded Feangai could have called evidence on the matter. In any event, I agree with the submissions of Mr. Niu that to establish abandonment the Minister must take forfeiture proceedings under section 44(2) of the Land Act and prove that to the satisfaction of the Court. There is no such application made.

Were Fine and Feangai occupying the allotment lawfully?

[38] Section 4 of the Land Act defines a holder‟s interest as "a life interest subject to the prescribed conditions". A holder is entitled to allow relatives and others to occupy the land (To'a v Taumoepeau and Minister of Lands (Unreported LA 10/2012, 13 March 2015 Scott J); Schaumkel v 'Aholelei [2013] TOCA 1 at paragraph [10], Vainikolo v Kaihea and another [2009] Tonga LR 201.) Historically the ability to do so is an essential aspect of social organization and land tenure in Tonga. I find that Nafetalai had authority to and did grant a license to Fine and Feangai to occupy the allotment and make it their own during his lifetime.

[39] Both Manapo‟uli and the Minister argue in the alternative that from 2007, when Nafetalai died, Fine and Feangai were no more than squatters. The Minister relied upon Schaumkel at paragraphs [33] & [38] and Finau v Minister of Lands and anor (Unreported Court of Appeal AC 9 of 2012, 12 October 2012). I do not consider either case supports the argument advanced by Manapo‟uli and the Minister.

[40] Schaumkel was concerned with the application of the rules of succession to a property which had not reverted or been surrendered under section 54 of the Land Act and where the Minister "did not have to exercise the discretion required in making a fresh grant". That was not the case here where the Minister was exercising a discretion to grant the lease.

[41] Certainly in Schaumkel at paragraphs [33] to [35] the Court of Appeal held that a person who has been simply given permission to occupy land by the land owner does not acquire a legal interest in the land, rather he is a holder of a license to occupy which may be terminated upon reasonable notice and the license to occupy must come to an end at the latest upon the death of the land owner. It does not follow, for the reasons I come to, that upon the death of the land owner the continued occupation of the land is necessarily unlawful.

[42] The assistance that the Minister seeks to obtain from Finau is unclear to me. The issue in Finau was whether the power to grant an allotment, which had reverted to the Crown, could be exercised if the allotment was in the lawful occupation of someone other than the grantee. The Court of Appeal held that there was no warrant to imply a requirement that the "lawful occupation by someone other than the potential grantee, renders land unavailable". The decision does not undermine the principle, that I discuss later in this ruling, that the exercise of a discretion by the Minister to make a grant must be exercised reasonably and fairly in accordance with the principles of natural justice. I note in this regard that at paragraph [2] the Court of Appeal recorded that before making the grant "the Minister heard from interested parties including the appellant about what should be done in relation to the allotment".

[43] In To'a at paragraph [53] Scott J found that the reversion of the land in question to the Crown did not render the continued use of the land by a license holder unlawful and he did not become a trespasser. The Judge said:

"While I accept that his license to reside there came to an end with Matei‟s death there is nothing to suggest that the Crown which was prima facie entitled to possession took any steps to evict him.

Accordingly, he was in possession nec vi, nec clam, nec precario ... Secondly, it is notorious that applications for grant and registration typically take months to process. It would be absurd, for example, to suggest that the lawful occupant of land subject to a section 83 reversion occupied the land unlawfully while his section 43 application was being processed (and see Tafa v Viau – above, paragraphs 36 – 39)."

[44] The common law of trespass to land protects the right of possession and not title as such. (Nui and ors v Takelava and anor [2013] TOCA 2.) As a general rule, only a person in possession of land is able to sue for trespass. Exclusive de facto possession of land (requiring both an intention to possess the land and the exercise of exclusive control over it) carries with it the right to retain possession and undisturbed enjoyment of the land as against all wrongdoers and also against the owner at least until such time as the owner has lawfully affected reentry. I note that in Schaumkel at paragraph [26] the Court of Appeal noted that ample notice to regain possession had been given following the expiry of a license to occupy.

[45] A person who is given lawful and exclusive possession of land but omits to give it up at the termination of his interest is not a trespasser in the absence of some step taken by the owner to evict him. (Hey v Moorhouse [1839] EngR 1044; (1839) 6 Bing N.C. 52.) The issue was discussed in Hampton v BHP Billiton Minerals Pty Ltd NZ [No 2] [2012] WASC 285 at paragraphs 300, 301 and 303 as follows:

"300. The counterclaimants submitted that it is sufficient for a claim for trespass that they had a mere intention to regain possession at some time in the future. There is centuries of authority, from at least the time of Blackstone, to the contrary. Physical occupation over the land, immediately prior to the trespass, is a pre-requisite for an action for trespass to land.

301. Consistent with the requirement of physical occupation, in a line of cases dating from at least 1827, it has been iterated and reiterated that a landlord, without re-entry, cannot maintain an action of trespass against a tenant holding over after tenancy. In the High Court of Australia in Radaich v Smith, Windeyer J said that „[a] right of exclusive possession is secured by the right of a lessee to maintain ejectment and, after his entry, trespass‟ (emphasis added). The same point was subsequently made by McHugh J saying that „[t]he legal right to possession before entry gave rise to an interesse termini that enabled the lessee to bring an action of ejectment and, after entry, an action for trespass to the land‟ (emphasis added). It has been quoted with approval in the Western Australian Court of Appeal. As Kirby P has said, the answer to the question of „[w]ho may sue for trespass to land‟ requires generally „the occupation or physical control of land‟ .....

303. In relation to trespass to land, the requirement for physical occupation or control was based on the law of seisin which required a formal entry to the land, ie livery of seisin. That formal entry was required to perfect title before the owner could bring a claim for trespass. A person occupying the owner‟s land without permission had a „real though wrongful seisin‟. It may be that the pre-requisite of physical occupation or control at the time of trespass arose from the origins of trespass as a writ vi et armis (with force and arms) and contra pacem regis (against the king‟s peace). For instance, Bullen and Leake‟s pleading of trespass to land in 1868 provided that „the defendant broke and entered certain land‟. An alleged trespasser who was in peaceful and consensual occupation prior to the alleged trespass could not comfortably be described as a trespasser."

[46] In a Tongan context it has been held that a person may lawfully occupy and reside upon land that he has not been granted by way of town or tax allotment, lease, sublease or permit and that the only requirement is that the applicant must be lawfully residing in the Noble‟s or Crown‟s estate. (Tafa v Viau and ors [2006] Tonga L.R. 287 at paragraphs [35] to [39] and Ma'ake v Lataimu'a [2007] Tonga L.R. 15 at paragraph [49].)

[47] In Finau at paragraph 22 the Court of Appeal said:

"The rights under the law of Tonga of those in lawful possession of an allotment without a documentary title were recognized in Tafa v Viau [2006] Tonga L.R 125 (LC) and 287 (CA). At [2] the Court of Appeal said:

„At the time of an application made by the appellant for the grant of an allotment .... the ... respondents .... were in lawful occupation of the land‟".

[48] It follows from this that notwithstanding that the license to occupy the land conferred by Nafetalai upon Feangai and Fine expired upon his death they remained in lawful occupation of the land. The fact of their exclusive possession gave them the right to be protected from disturbance; a right that would be recognized and enforced by the Court. Their occupation would not become unlawful unless and until the Crown asserted its rights of ownership by taking steps to evict them. The evidence establishes that no such steps were taken between Nafetalia‟s death in 2007 and the granting of the lease in November 2013.

The Minister's functions and duties

[49] Sections 89 and 92 of the Land Act provide as follows:

"89. No lease shall be granted except with the consent of the Cabinet, but consent shall not be granted to a lease by a widow of the land of her deceased husband.

"92. A lease granted under sections 90 or 91 shall be in the form prescribed in Schedule IX. The term shall not exceed 50 years, and shall be renewable upon such conditions as to rent and methods of cultivation as may be ordered by regulations made under this Act."

[50] The lease application is form no 1 of Schedule IX to the Land Act and it is directed by section 124 (1) that the form is to be used with such variations as may be necessary. There is a requirement that the estate or allotment holder declares that there is no impediment to prejudice the lease. When signing the form the Minister does so as the representative of the Crown. (Tafa at page 293).

[51] For Feangai, Mr. Nui made a submission that the grant of the lease to Manapo‟uli was invalid because there was an impediment to the grant "namely, the work of filling the allotment by the defendant and her husband and the presence thereon of their substantial two storey dwellinghouse and their occupation and residing thereon...". In previous cases the Courts have expressed a view that there will be an impediment to the making of a grant if land is not „available‟ because, save in the case of trespassers, the land was in fact occupied. (Onglolea v Finau [2003] Tonga L.R 147 and Vai v 'Uliafu [1989] 1989 Tonga L.R 56.) Whether the approach taken in those cases can be supported must now be in doubt in light of the comment of the Court of Appeal in Finau at paragraph [16] that the Court was leaving it for determination in another case:

"....whether the Act entrusts to the Minister the determination of the question of whether land is "available" as a matter of fact .... or whether "available" has a legal meaning to be determined by a Court in any challenge to a Minister‟s decision which would be of general application or to be determined and applied by a Court on a case by case basis."

[52] However, as Scott J observed in Toa at paragraph [61]:

"While the responsibility for determining availability may not be clear what is beyond doubt is the responsibility of the Ministry to make proper enquiries to comply with the rules of natural justice and to avoid obvious mistakes before a decision is reached"

[53] The Courts have recognised the application of traditional legal grounds of judicial review to the administrative decision of the Minister to make grants under the Land Act. A repository of administrative power has an obligation to adopt a reasonable and fair process before he exercises that power. This includes the duty to take reasonable steps to ascertain the facts relevant to the exercise of the power. In Tafa the Court of Appeal at paragraph [12] said:

"Two aspects of the Minister‟s functions and duties, in a case such as this, combined to require him to take steps, which must be reasonable in the particular circumstances, to ascertain whether the land is in fact not subject to some other claim that might be an impediment to a grant or make it unavailable. In the first place, he cannot properly sign the declaration on behalf of the Crown that there is no impediment if the truth is that he simply does not know because he has made no sufficient inquiry. In the second place, the administrative decision to make the particular grant cannot properly be made in the absence of the same enquiry in any case where the Minister does not actually know whether the land is available, or whether any competing claim has been appropriately resolved. Of course, in both respects, the Minister does not have to make enquiries personally. He may rely on his officers, but if he does so, and they fail to perform the tasks properly, a person affected may have a remedy for that failure as if it were a failure of the Minister."

[54] The Court also noted that a decision maker can be held to account if he fails to have regard to circumstances that he would have known had he acted reasonably and fairly. At paragraph [13] the Court said:

"Where the knowledge would have imposed a duty to accord natural justice to some person ..... the Court must place itself in the shoes of the repository of the power to determine whether the procedure adopted was reasonable and fair"

[55] In Finau the Court of Appeal considered (at paragraph [15]) that Tafa is authority that before making a grant a Minister must consider whether land is available and a failure to do so "vitiates the grant" (See also Hausia v Vaka'uta and anor [1974 – 1980] Tonga L.R. 58; Hakeai v Minister of Lands and ors [1996] Tonga. L.R 142; Cocker v Palavi and anor [1997] Tonga L.R 203 and Tafa).

[56] The requirements of natural justice will vary from case to case and are dependent upon the nature of the inquiry that is being conducted and the decision making power that is being exercised. However, in a case such as this, where the making of a grant has the potential to adversely affect some identifiable person by dispossessing her from her home of longstanding the Minister can reasonably be expected to seek her views and given her an opportunity to adduce probative material before making a decision. This is not an onerous obligation. As was noted in the Land Court in Tafa at pages 141-142:

"To have a situation therefore where the Minister of Lands is able to make a grant of an allotment in total disregard for the rights of a long term occupant of the same piece of land, in quite untenable and is a recipe for lawlessness. I cannot accept that such a consequence could ever have been intended by the legislature"

Was the decision of the Minister to grant the lease to Manapo'uli lawful?

[57] The evidence established that reasonable steps were not taken by the Minister to acquaint himself with the information that was relevant to the exercise of his power to make a grant of the lease to Manapo‟uli.

[58] The principle evidence that has a bearing on this point was given by Mr. Semisi Moala for the Minister. Mr. Moala was the officer responsible for the handling of Manapo‟uli‟ application for lease on behalf of the Ministry of Lands albeit he delegated his duties to Mr. Lousa. He said that before the lease was granted to Manapo‟uli the land should have been inspected but it was not. Mr. Moala considered that the only time an inspection will not be required before a lease was granted was in respect of recently sub-divided land (which this was not). He said that the decision to grant the lease may well have been different had an inspection been done in this case Mr. Moala also confirmed that on the briefing form to the Minister someone had confirmed the site inspection was "OK" indicating that an inspection had been completed. He said that when making his decision to grant the lease the Minister would have understood that an inspection had been carried out.

[59] Based on this evidence I reject as a matter of fact the submission for the Minister that even had the Minister heard from Feangai he would have found that she had no legal claim to the land.

[60] In the circumstances described by Mr. Moala the Minister proceeded to make the grant in ignorance of the factors that the allotment was occupied by Feangai and her family, had been so occupied at that stage for 12 years, that Feangai and Fine had undertaken at their own cost substantial improvement work and had built a two storey dwelling and workshop upon the land.

[61] Furthermore, Feangai was never consulted and was not given any opportunity to be heard before the Minister exercised his discretion to grant the lease to Manapo‟uli. Knowledge of the matters referred to above would have required the Minister to accord natural justice to Feangai and consider her interests before making a grant of the lease to Manapo‟uli.

[62] Even if I had been of the view that Feangai was in unlawful occupation of the allotment it would not in my view follow that the Minister was not required to consider her interests before making a grant to another. The argument that the Minister is not required to consider the interest of „squatters‟ or „trespassers‟ is derived from cases such as Onglolea and Vai and for the reasons I have already stated the approach taken in those cases may not now be supportable. In my view, the Minister, having made reasonable enquiries, should have regard to the rights, interests or legitimate expectations of any person that are imperiled by the Minister‟s consideration of the application for the grant. In Hakeai at page 3 the Court said:

"It is clear law that a person whose rights, interests or legitimate expectations are imperiled 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. This is what is known as natural justice. Here, although the officials of the Ministry of Lands knew the surrender had been arranged to enable him to apply for a grant of the allotments, he was not given any opportunity to argue that he should have priority before the purported grant was made to the appellant. That was legally wrong. If he had been given the right to comment, this whole matter might well have ended then. It is to enable both sides of a case to be considered that the principle of natural justice exists."

Summary of my findings

[63] Nafetalai was lawful holder and owner of the allotment from at least 1980 albeit not formally registered as such. He granted Fine and Feangai a license to lawfully occupy the land and make it their own. Whilst that license expired upon his death Fine and Feangai remained in lawful occupation of the land. Before granting the lease the Minister was obliged to inspect the land and to give consideration to the interests of Fine and to give her an opportunity to be heard in accordance with the principles of natural justice. The Minister failed to do so and the granting of the lease was accordingly unlawful.

The relief

[64] For the foregoing reasons I dismiss Manapo‟uli‟s claim for possession of the land. I give judgment for Feangai both on Manapo‟uli‟s claim and on her counterclaim.

[65] I declare that the grant of the lease to Manapo‟uli to be invalid and I order the cancellation of the registration of the lease.

[66] The matter is referred back to the Honorable Minister of Lands for further consideration but I note that such consideration must now include the competing claims for a lease of the property as well as any claims that Feangai may wish to make once she is consulted.

[67] I will receive any written submissions on costs by Feangai within 21 days and by Manapo‟uli and the Minister 21 days thereafter.

PRESIDENT
NUKU'ALOFA: 17 April 2015.