Sete v Palu [2015] TOLC 6; LA11 of 2014 (13 July 2015)

IN THE LAND COURT TONGA
NUKU'ALOFA REGISTRY

LA 11 of 2014

BETWEEN:

TALANOA NIKOLA SETE
Plaintiff

AND:

1. SOSEFO VAITAFE PALU
2. TUPETAIKI MANUOTALAHA
3. MINISTER OF LANDS
Defendants

Hearing : 4-5 May 2015
Counsel : Mr. S.T. Fakahua for the plaintiff
Mr. S. Tu'utafaiva and Mr. S.H. Taione for the first and second defendants
Mr. S. Sisifa (Solicitor General) for the third defendant

RULING

THE ISSUE

[1] On 24 November 1989 the plaintiff (Talanoa) was registered as the holder of a town allotment at Ma‟ufanga known as Tauangemai „O Mascot, contained in Book 191 Folio 51 being Lot 1 Plan 2453 with an area of 39.39 perches, and a deed of grant was issued to him. On 15 May 2013 the Minister of Lands cancelled Talanoa‟s deed of grant. On 13 January 2014 the Minister made a grant of an allotment known as Mamakoula to the first defendant (Sosefo). Mamakoula included the land that had previously been Talanoa‟s allotment, Tauangemai „O Mascot.

[2] Talanoa is applying for orders declaring the cancellation of his deed of grant of Tauangemai „O Mascot unlawful, directing the Minister to cancel the registration of Mamakoula to Sosefo and evicting Sosefo and the second defendant (Tupetaiki) from his land. He is also claiming damages from Sosefo and Tupetaiki in respect of their alleged unlawful occupation of the land.

[3] All of the defendants maintain that the Minister had an implied statutory power to cancel Talanoa‟s deed of grant. They also submit that the Minister exercised that power lawfully because Talanoa should never have been granted Tauangemai „O Mascot as it was registered as being held on trust for the benefit of Sosefo. Sosefo and Tupetaiki also deny that Talanoa is entitled to any damages for their occupation of Tauangemai „O Mascot as they say he did not acquire any rights to the land according to law.

[4] The principal issue in this case is whether the Minister of Lands had the power to cancel Talanoa‟s deed of grant.

THE FACTS

[5] On around 16 June 1948 a town allotment known as Mamakoula, which consisted of an area of 1 rood 24.2 perches, was registered to „Etuate Palu. Sosefo was „Etuate Palu‟s son and heir. Talanoa‟s father, Penisimani Sete, was „Etuate Palu‟s younger brother. Tupetaiki is Sosefo‟s half brother.

[6] „Etuate Palu died on 5 October 1958 when Sosefo was 10 years old. „Etuate Palu‟s widow remarried and was not entitled to a life estate in Mamakoula. On 6 October 1959 the Minister of Lands approved the appointment of Setefano Moala to hold Mamakoula on trust for Sosefo (the trust).

[7] Sosefo was then brought up by Talanoa‟s parents and raised as if he was their own child and an older brother to Talanoa. Talanoa‟s unchallenged evidence was that in the 1960‟s the Minister of Lands gave a tax allotment at „Eua to Penisimani Sete and this was given to Sosefo as his tax allotment because Penisimani Sete treated Sosefo as his eldest son and Talanoa was still a minor. Sosefo also travelled with Penisimani Sete to Pago Pago and New Zealand to work.

[8] The trust was not cancelled upon Sosefo attaining the age of 16 years in 1964. However, on 26 May 1971 the Minister of Lands directed that Mamakoula be subdivided into two allotments, one for Sosefo and one for Penisimani Sete. Sosefo, who was by then 23 years old, says that neither he nor his trustee consented to the subdivision of Mamakoula.

[9] There is very little documentation before the Court about this dealing.

There was an acknowledgement from Mr. Fataua Halatanu, from the Ministry of Lands, that it was possible that relevant documents had been lost. That is self-evident. One document that was produced into evidence was a Savingram dated 26 May 1971. Its heading is "Equally subdivide the Town Allotment of S. Vaitafe Palu of Ma‟ufanga so they can have 30 perches each with Peni Sete". The Savingram confirms the payment of survey fees and the Estate Holder‟s approval to the application for subdivision. It states "Survey has been paid by the above-named couple...". The land was subdivided into Lots 1 (Tauangemai „O Mascot) and 2, Plan 2453.

[10] Tauangemai „O Mascot was allocated to Penisimani Sete although his title was not perfected by registration. His name was written on the plan of the allotment. This is confirmed by the handwritten note on document 6 of the third defendant‟s bundle which states "...On this allotment, the name Peni Sete is written on it, but he has written on 5/1/87 (G3/3/3. NK) requesting that this man, his son, apply for it. A letter from the Town Officer is also provided". A deed of grant of Tauangemai „O Mascot was prepared in the name of Penisimani Sete but it was never signed by the Minister. I note that the Minister has acknowledged that Tauangemai „O Mascot was held in the name of Penismani Sete in paragraphs 6, 7 and 18 of his statement of defence.

[11] Sosefo was resident overseas in the early 1970s but in around 1977 he returned to Tonga and built his house on Lot 2.

[12] On 6 January 1987 Talanoa applied for registration of Tauangemai „O Mascot into his name. His application was accompanied by a letter from Penisimani Sete dated 5 January 1987 which stated that he wished to surrender his "registered town allotment at Ma‟ufanga to my eldest son (heir) namely Nikola Sete." Before the land was registered to him Talanoa also submitted a letter dated 22 November 1989 from the Town Officer of Ma‟ufanga that incorrectly stated that he had built a modern house on the land. Talanoa was cross-examined about these letters. As far as the letter of Penisimani Sete was concerned he was questioned about the fact that the letter he produced into evidence was an unsigned copy and that it was not found on the Ministry‟s file. I am satisfied that Penisimani Sete did consent to Talanoa‟s application. This is clear from the notation on document 6 of the third defendant‟s bundle. As far as the Town Officer‟s letter was concerned, it was put to Talanoa that he had lied to obtain the grant. The evidence was insufficient for me to make such a serious finding but I do not need to do so as in my view it cannot change the result of this case.

[13] Talanoa understood that there had been a surrender of Tauangemai „O Mascot by his father to him. The evidence of Mr. Fataua Halatanu was that as the land had not been registered under the name of Penisimani Sete it could not be surrendered. This evidence explains the letter of the then Minister of Lands, Baron Tuita, to the Senior Surveyor at the Ministry of Lands dated 20 January 1987, which is document 7 of the third defendant‟s bundle, that states in relation to the deed of grant that had been prepared in Penisimani Sete‟s name "Please cancel Peni Sete from it as he has surrendered it on 5/1/1987, but draw up and prepare the Deed of Grant in the name of Talanoa Nikola Sete, as the Estate Holder has already signed his application on 15/1/1987".

[14] The deed of grant of Tauangemai „O Mascot was issued to Talanoa on 24 November 1989. At the same time, a deed of grant for Lot 2 was prepared in the name of Sosefo. This was never signed by the Minister. The deeds of grant were prepared at the same time and have consecutive numbers in the register of allotments. On 23 June 2004, the trust, which subsisted in respect of Lot 2, was cancelled. No deed of grant in favour of Sosefo was prepared at the time.

[15] I am satisfied that Sosefo was aware of the subdivision of Mamakoula at the time that it occurred. The evidence that has a bearing on this is as follows. The Savingram of 26 May 1971 indicates that Sosefo and Penisimani Sete had paid the survey fees for the subdivision of Mamakoula. This is consistent with the facts that Sosefo was treated as a son by Penisimani Sete and had been given the allotment in „Eua at the request of Penisimani Sete. There was little likelihood, in those circumstances, that Penisimani Sete would undertake the subdivision of Sosefo‟s land without Sosefo‟s knowledge and consent. Furthermore, when Sosefo built his house he did so entirely on Lot 2 and there is no evidence that he used or occupied any part of Tauangemai „O Mascot. This takes on added significance when one considers the letter that Sosefo sent to the Minister of Lands dated 10 September 2012 where he described Tauangemai „O Mascot as "the face of my land". Sosefo‟s conduct is consistent with him having given up any rights to Tauangemai „O Mascot. In addition, Talanoa said that Sosefo was allocated Lot 2 because he had been paid compensation for the loss of land from it when the By-Pass Road was constructed. This evidence was not challenged. It was also Talanoa‟s unchallenged evidence that in 1980 Sosefo asked him to allow Tupetaiki to occupy Tauangemai „O Mascot even though it was still registered in Penisimani Sete‟s name. This is consistent with Sosefo recognising Talanoa‟s rights as Penisimani Sete‟s heir.

[16] A further factor is that Sosefo variously said that he first learned that Mamakoula was subdivided in the 1980‟s, the 1990‟s, and 2004 when the trust was cancelled. He also said that he learned from Penisimani Sete that Talanoa had gone to register Tauangemai „O Mascot but then that he learned the land had been registered to Talanoa in 2009 or 2010, when he was told of it by Talanoa‟s wife, and when he went to see the Minister of Lands, which would have been in 2012. I found Sosefo to be an unconvincing witness on these matters.

[17] Tupetaiki had been in occupation of Tauangemai „O Mascot for some years with Talanoa‟s permission. In 2010, Talanoa asked Tupetaiki to pay rent. Tupetaiki was not prepared to pay rent and said he would vacate the land but he did not do so. In response to a dispute that arose when Talanoa fenced Tauangemai „O Mascot, Sosefo, who resides in Australia, came to Tonga and went to the Ministry of Lands to determine the status of the land. At about that time Tupetaiki removed the southern side of the fence. Sosefo said in his evidence that he has authorised Tupetaiki to continue to occupy the land.

[18] Sosefo sent a letter to the Minister of Lands dated 10 September 2012 asserting that he had not agreed to the subdivision of Mamakoula or the surrender of his land and asking for Talanoa‟s registration to be cancelled. On 15 October 2012, Talanoa wrote to the Minister asserting that his father was right to subdivide Mamakoula. Sosefo sent a further letter to the Minister on 29 April 2013 asking the Minister to make a decision so that he could "proceed developing my allotment".

[19] In May 2013, the Minister conducted meetings with Talanoa and Sosefo. The minutes of those meetings are before the Court and were not disputed. The Minister decided that Mamakoula had been subdivided unlawfully because he considered it was subject to a trust in favour of Sosefo. At a meeting on 15 May 2013 the Minister advised Talanoa of his intention to cancel his deed of grant to correct what he regarded as a mistake. He said that if Talanoa wanted, an alternative allotment would be found for him. Talanoa indicated at that time that he accepted the Minister‟s decision. Had he not done so it appears the Minister would have had the matter resolved by the Court. The minutes of the meeting state "If they want to go to court, then we will go to court". On 15 May 2013 in a Savingram to the Secretary of Lands the Minister directed:

Because it is confirmed that the work conducted was not lawful, it was decided today to cancel the registration of Talanoa Nikola Sete on 21.11.1989 (Refer D/G 191/51) and a new survey for 1R 24P to 'Etuate Palu‟s registration on 16.04.1948. Once the survey is complete prepare the Deed of Grant and put to it the changes made above for the registration of the area of the allotment which is 1R 24P.

[20] The Minister also directed that land be found for Talanoa but nothing to Talanoa‟s satisfaction has been found and these proceedings were commenced. In the meantime on 6 August 2013, Mamakoula was posthumously registered in the name of „Etuate Palu and a deed of grant (Book 4 Folio 42) was issued. On 13 January 2014, Mamakoula was transferred to Sosefo as his allotment as „Etuate Palu‟s heir.

THE MINISTER'S POWERS

[21] The Minister‟s powers are derived from the Land Act. Pursuant to section s19(1) he is the representative of the Crown in all matters concerning the land of the Kingdom. It is fundamental that in purporting to exercise a statutory power the Minister must act within the limits of the power conferred upon him. If he acts outside those limits then he does so unlawfully.

[22] It is common ground that the Land Act confers no express power on the Minister to cancel a deed of grant in the circumstances of this case. For Talanoa, Mr. Fakahua submits that only the Land Court could cancel Talanoa‟s deed of grant under the jurisdiction conferred upon it by section 149 of the Land Act. The defendants argue that such power to cancel Talanoa‟s registration is to be implied from the fact that under the Act the Minister has the power to grant allotments. The argument is that what the Minister has the power to grant he must also have the power to revoke.

[23] Sometimes the Courts will fill in gaps in a statutory framework when this is required to make an Act work as it was intended. In my view, such an implication could only arise if it is directly suggested by the express words in the Land Act or because it is necessary and proper as being indirectly suggested by principles of interpretation and law that are not displaced by the words expressed in the Act.[1]

[24] Section 19 of the Act confers general powers on the Minister. Section 19(2) provides that the Minister "shall grant allotments to Tongan subjects duly entitled thereto by law". There is nothing in the section that confers a power on the Minister to cancel registrations of land in particular circumstances or as he considers fit. There is power in section 22 of the Act for the King in Privy Council to make regulations for the convenient administration of the Act but it was not suggested that any such regulations are relevant in this case.

[25] In granting allotments the Minister performs an administrative function and his decisions are subject to review by the Court. Powers conferred upon the Minister under the Act to cancel deeds of grant in particular circumstances are administrative in nature also. An example is contained in section 73 upon the surrender of land. Under section 49 the Minister may have power to cancel a grant in excess of the maximum area permitted.[2] Under section 123, the Minister may issue a new deed of grant to a person entitled to succeed to an allotment who is unable to produce to the Minister the relevant deed of grant for endorsement, at which time the former deed is "deemed to be duly cancelled".

[26] In this case the Minister did not act administratively when he cancelled Talanoa‟s deed of grant. He was acting quasi-judicially to resolve a dispute between Talanoa and Sosefo as to who owned the land. That is a power that is conferred by the Act on the Land Court but not on the Minister. Section 149 (1)(b) provides that the Land Court has jurisdiction "to hear and determine all disputes, claims and questions of title concerning any land...". Importantly, section 150 provides that the jurisdiction of the Land Court may be exercised "on the application of any person claiming to be interested or on the application of the Minister".

[27] The first and second defendants argue that the Minister only has the power to grant an allotment to someone lawfully entitled to it. It follows, they argue, that in cases where a grant is unlawful the Minister must by necessary implication have the power to cancel the grant. I do not accept this submission. It contains within it the unexpressed, and in my view incorrect, assumption that the Minister has the right, capacity and facility to determine which grants are lawful and which are not.

[28] Under the Land Act it is the Land Court that has the primary role in resolving disputes relating to land. This is clear from many sections in the Act, including the following examples. Under section 23, the Minister is to endeavour to define the holdings and boundaries of every landholder but under section 23(2) and (3) it is the Land Court that determines disputes that arise from the exercise by the Minister of his function. Under section 34, where the Minister and the holder of an hereditary estate do not agree to the making of a grant the Minister may grant land as a tax allotment subject to review of the Land Court. Under section 44, the Minister must take forfeiture proceedings in the Land Court for recovery of an allotment on Crown Land. Under section 68, a holder of an allotment may be ejected in an action brought against him by the Minister in the Land Court. Under section 81, proceedings to recover any tax or town allotment from a widow on the grounds that she has committed fornication or adultery are brought in the Land Court and it is the Land Court that declares the widow‟s estate terminated and forwards a certificate of such finding to the Minister. Section 112C(3) provides that it is the Land Court that hears objections from the exercise of the Minister‟s powers to compel the granting of an easement.

[29] I note also that the Land Act has detailed provisions dealing with the granting, registration, devolution and surrender of allotments (Part IV Division 1, Part IV Division V, Part IV Division VII and Part VIII Division II) but no such provisions dealing with the circumstances, processes or consequences of the cancellation of registrations of allotments at the discretion of the Minister.

[30] Contrary to the submissions for the defendants, the implication of the power that they contend for is neither necessary nor reasonable. Disputes over land commonly involve complex facts and difficult questions of law. Often parties are challenging decisions that the Minister, or his predecessors, have made. Such disputes can only be heard impartially and appropriately in proceedings before the Land Court, which is a specialist tribunal that has tailored procedures for hearing only land cases.

[31] The existence of such a power would also circumvent the operation of the statutory limitation defense under section 170 of the Act which only applies to actions "in the Court". This case is apposite. Assuming that Sosefo could prove that Talanoa‟s registration of Tauangemai „O Mascot in 1989 was unlawful, his right to bring an action in the Land Court to recover Tauangemai „O Mascot was time barred in 1999. That is 14 years before the Minister purported to cancel Talanoa‟s registration.[3] If the defendants are correct the Minister would have the power to cancel a deed of grant at any time notwithstanding that the Land Court had no such power after the expiration of 10 years from when the right to bring the action had first accrued. That cannot possibly have been intended and is an important factor telling against the defendants‟ case. Certainty in the law is important and when a period of limitation has expired a potential defendant should be entitled to assume that he is no longer at risk of a stale claim.[4]

[32] The defendants‟ Counsel have referred me to case law which they submit is authority that the Minister may cancel a registration in circumstances were it was obtained by mistake.

[33] In Fifita v Minister of Lands[5] the Minister cancelled the plaintiff‟s grant of a town allotment pursuant to section 49 of the Land Act on the ground that the allotment exceeded the statutory area. Section 49 provides that it shall be unlawful for a grant of an allotment to be made in excess of the area specified in section 7 and that any such grant shall be "null and void". The Land Court had held that the cancellation of the plaintiff‟s grant was lawful. The Privy Council allowed an appeal from that decision on the basis that section 49 had to be read as enacting that, where a grant is made of an allotment in excess of the specified area, what is rendered null and void is the grant of the excess not the whole grant. The Minister submits that Fifita is authority that it can be implied "that the Minister may cancel the grant or he may apply to the Court for an order, at his option, subject always to the right of any other party claiming to be interested to apply to the Court." That is not so in my view. Fifita involved a grant which, to the extent that it exceeded the statutory limit, was "null and void". In purporting to cancel such a grant the Minister was exercising an administrative function not a judicial one.

[34] Ma'asi v Akau'ola and The Deputy Minister of Lands[6] concerned an unsuccessful challenge by the plaintiff to the deletion of his name as the registered holder of an allotment known as Maliunga and his registration as the holder of an allotment known as Onega. The Minister relies upon the statement by Hunter J that "the Court is bound by the entries in the Register..." but as the Learned Judge noted this is "unless it can be shown that they have been made by fraud, mistake, or without jurisdiction". The issue in this case is the scope of the Minister‟s jurisdiction and upon that issue Ma‟asi does not assist. The next case I was referred to is Maka v Minister of Lands[7] which concerned a challenge to a grant of an allotment and so is quite different from the present case. Maka was referred to me because the Court said that a grant should not be upset by the Court unless it be shown that the Minister‟s discretion has been "improperly exercised or that the grantee is not legally entitled to the allotment..". The Court also noted that a grant could be set aside if the registration was made by "mistake, fraud, or without jurisdiction". I see nothing in Ma'asi or Maka that supports the defendants‟ position.

[35] Hakeai v Minister of Lands8 and Minister of Lands v Finau9 are cases where there were competing claims to an allotment. In both cases the land in question had been granted to one party and the Minister cancelled those grants and registered the land to the competing claimant. Neither case is authority that the Minister has a general power to cancel deeds of grant that he considers unlawful. The point was not raised or decided in either case. In both cases, the Minister‟s conduct in cancelling deeds of grant was held to be unlawful but on other grounds.

[36] Had the Legislative Assembly intended that the Minister was to have the power to cancel deeds of grant that he considered were unlawful it would have been a simple matter to say so. If such power had been included in the Act it could be expected that there would have been rules and processes governing its exercise.[8]

[37] For the reasons I have given, the Minister had no power to cancel Talanoa‟s deed of grant to Tauangemai „O Mascot or to grant his land to Sosefo.

[38] Had I found that the Minister did have the implied statutory power for which the defendants contend, I would have set aside his decision to cancel Talanoa‟s deed of grant in this case in any event. It has long been recognised that the Land Court may set aside the Minister‟s administrative decisions if they are made under a material mistake. The Minister was mistaken in his view that the grant of Tauangemai „O Mascot to Talanoa was made at a time that the land was held in trust for Sosefo. When Talanoa applied for the land it was owned by Penisimani Sete and was not held on trust. The land was allocated to Penisimani Sete in or around 1971 following the subdivision of Mamakoula. That was when Sosefo‟s cause of action (if any) accrued. Any ability that he may have had to recover the land was time barred well before it was transferred to Talanoa.

TALANOA'S CLAIM FOR POSSESSION

[39] Sosefo and Tupetaiki opposed Talanoa‟s claim for possession of Tauangemai „O Mascot on the basis that he did not acquire any rights to the land according to law. I have found otherwise. As they have no other basis to resist the claim, and have been given adequate notice to vacate, Talanoa is entitled to an order for possession of Tauangemai „O Mascot.

THE DAMAGES CLAIM

[40] In his amended statement of claim, Talanoa has sought judgment for T$20,000 which represents damages for Sosefo‟s and Tupetaiki‟s alleged trespass and unlawful occupation of Tauangemai „O Mascot since December 2012. Mr. Fakahua also argued for an additional T$9,000 representing the cost to Talanoa to build the fence that was partially removed by Tupetaiki.

[41] There is no claim for the T$9,000 in the prayer for relief in Talanoa‟s amended statement of claim. I am not prepared to grant Talanoa relief that has not been sought in the amended statement of claim. In any event the claim is unproven. The evidence that the fence cost T$9,000 to build was unsupported by adequate proof of the cost of materials or labour. Furthermore, there was no evidence of the present day value of the fence or of that part of it that was removed. There was no evidence of what it would cost to restore the fence or what loss flowed from the removal of part of the fence.

[42] The claim for damages for trespass are unproven. In the absence of proof of actual damage to the land or a reasonable rate of remuneration for the period of unlawful occupation I can award no more than nominal damages. I assess them at T$100.

THE RESULT

[43] I find that the Minister‟s cancellation of Talanoa‟s deed of grant of Tauangemai „O Mascot and the issue of a deed of grant of Mamakoula to Sosefo were invalid and of no effect.

[44] I direct that the Minister cancel the deed of grant of Mamakoula to Sosefo dated 13 January 2014. I also direct him to re-issue the deed of grant of Tauangemai „O Mascot dated 24 November 1989 to Talanoa.

[45] Sosefo and Tupetaiki are to vacate Tauangemai „O Mascot within 21 days.

[46] Talanoa is awarded damages for Sosefo‟s and Tupetaiki‟s unlawful occupation of Tauangemai „O Mascot in the sum of T$100.

[47] Counsel should file memoranda on costs within 14 days.

O. G. Paulsen
PRESIDENT

NUKU'ALOFA: 13 July 2015.

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^[1] Bennion “Statutory Interpretation” 2 Ed at page 361. This was the approach that I recently took also in Pohiva v Magistrate’s Court, AM 4 of 2015, 22 June 2015.
^[2] Fifita v Minister of Lands (1972) Tonga LR Vol III 45, 46.
^[3] Mokofisi v Minister of Lands AC 23 of 2014; Motuliki v Namoa & Ors (1981-1988) Tonga LR 141 and Lokotui v Fifita & Ors [1992] Tonga LR 18 (CA).
^[4] Yew Bon Tew v Kenderaan Bas Mara [1983] 1 AC 553, 563.
^[5] Supra at fn 2.
^[6] (LC) 1923-1962 Vol II Tonga LR 107.
^[7] (LC) 1923-1962 Vol II Tonga LR 111 ⁸ [1996] Tonga LR 142. ⁹ [2001] Tonga LR 221.
^[8] Church of Jesus Chris of Latter Day Saints in Tonga Trust Board v Fepale anors [2011] Tonga LR 71.