Tapealava v Minister of Lands [2015] TOLC 7; LA 24 of 2011 (4 August 2015)

IN THE LAND COURT OF TONGA
NUKU'ALOFA REGISTRY

LA 24 of 2011

BETWEEN:

BENJAMIN TAPEALAVA
- Plaintiff

AND:

MINISTER OF LANDS
- First Defendant

AND:

MAKINETI JONES
- Second Defendant

Hearing: 29 June 2015 and 21 July 2015.
Decision: 4 August 2015.
Counsel : Mrs. 'A. Taumoepeau for the plaintiff
Mr. 'A. Kefu SC for the first defendant
Mr. L. Niu SC for the second defendant

RULING

The issues

[1] The plaintiff (Benjamin) is the eldest son of Moi Tapealava (Moi) who died in 1999. Moi was registered as the owner of a town allotment at Haveluloto, Tongatapu. Benjamin applied, as Moi‟s heir, for the Haveluloto town allotment. The Minister will not grant Benjamin the land as he considers Moi‟s registration is null and void on the ground that Moi had a prior grant of a town allotment at Mo‟unga‟one that had never been surrendered in his lifetime.

[2] Benjamin seeks orders quashing the Minister‟s decision and requiring the Minister to grant him the Haveluloto town allotment. He argues that Moi did not have a prior grant of a town allotment at Mo‟unga‟one, that the Minister is estopped from "reversing" Moi‟s registration of the Haveluloto town allotment and that the Minister‟s decision is unlawful as he failed to consult with him.

[3] The issues that arise are the following:

• [3.1] Did Moi have a prior grant of a town allotment at Mo‟unga‟one?
  
• [3.2] If so, what is the effect of Moi‟s subsequent registration of the Haveluloto town allotment?
  
• [3.3] Is the Minister estopped from declaring Moi‟s registration of the Haveluloto town allotment null and void and/or from refusing to register Benjamin as the owner of the land?
  
• [3.4] Was the Minister required to consult with Benjamin?
  

The parties

[4] Benjamin commenced this proceeding against the Minister only. The second defendant (Makineti) successfully applied to be joined as a party by Order of Scott CJ on 18 July 2014. Makineti takes the same position as the Minister in this action and argues that Moi‟s registration of the Haveluloto town allotment was null and void and that Benjamin has no right to the land.

The facts

[5] To understand how this case arose it is necessary to go back to recount some family history starting with Benjamin‟s grandfather, Siosaia Tapealava. Siosaia Tapealava owned a town allotment at Mo‟unga‟one and a tax allotment at Ofolanga (both at Ha‟apai). He was married to Makelesi Naule‟o Tapealava (Naule‟o) and together they had seven children. The eldest was a son named Viliami Tafokitau Tapealava (Tafokitau). Makineti was the next child. The fourth child, and second son, was Moi.

[6] In the 1940‟s Siosaia and his family moved to Tongatapu and lived at Fua‟amotu. When Siosaia died, Naule‟o remarried. Tafokitau succeeded to Siosaia‟s town and tax allotments in June 1946. In December 1951, Tafokitau surrendered the tax and town allotments in favour of tax and town allotments that had previously been registered to his grandfather, Nehasi Moi.

[7] In 1953, Makineti learned that Sosaia‟s town and tax allotments would be lost unless a claim was made for them. Moi was then 19 years old. Makineti had Moi travel to Ha‟apai to apply for the allotments. The unchallenged evidence is that Makineti paid for Moi‟s travel to and from Ha‟apai and also paid for survey and registration fees and the first annual rent of the tax allotment. Makineti said that upon Moi‟s return from Ha‟apai she confirmed, from the receipt that he had in his possession, that he had been registered as the owner of both the tax and town allotments.

[8] The Minister‟s bundle of documents contains the relevant pages from the register of allotments and show that Moi was granted the tax and town allotments on 17 August 1953. No deeds of grant were issued to him at that time and, in respect of the town allotment, no deed of grant was ever issued to him. A deed of grant was issued for the tax allotment but not until February 1973. The evidence of Mr. Fataua Halatanu, from the Ministry of Lands, was that deeds of grant were not issued because the land at Mo‟unga‟one had not been surveyed. However, it is clear from the register of allotments that in the case of Moi‟s town allotment a plan had been prepared and Moi‟s town allotment was lot 51 on that plan.

[9] A relevant feature of the deeds of grant issued to Moi for his tax allotment is they state the location of the allotment is at „Ofolanga (Mo‟unganoe)‟ and „Ofolonga (Mounganone)‟. The evidence was that „Ofolonga and Mo‟unga‟one are islands in the Ha‟apai group and that the parenthesis „Mo‟unga‟one‟ meant that Moi had a town allotment or lived at Mo‟unga‟one.

[10] Makineti‟s evidence was that Moi was well aware that he was registered as the owner of the town and tax allotments at Ha‟apai. Makineti said that Moi asked her to send a telegram to Paula Kolo to look after the allotments for him and she sent that telegram as Moi directed. She recounted how Moi had instructed Paula Kolo to make copra from his tax allotment and to send the money to him. Moi would tell her and his other siblings how he visited his allotments and during the 1970‟s Moi would talk about taking fishing boats to „Ofolanga and Mo‟unga‟one where there was the best fishing and where he had his town and tax allotments. Makineti also said that at no time did Moi forget that he had a town allotment and a tax allotment in Ha‟apai. None of this evidence was challenged.

[11] Naule‟o‟s second husband died in 1961 and in 1963 she was forced from the land upon which they had been living by her husband‟s heir. Makineti has lived in Australia since 1956 but was friends with Kaifonua, the daughter of the Fielakepa. She asked Kaifonua if there was any land where her mother could live. Makineti says that she was gifted land at Haveluloto by the Fielakepa for her mother to live on. Her mother‟s house was moved onto that land at around this time. She also says that all her brothers and sisters were aware of the gift of the land to her and they always regarded it as her land.

[12] At some stage prior to 1972, Moi moved his mother from the Haveluloto land. Makineti came to Tonga in 1972 and built a brick house on the land and returned her mother to the land. Later, Moi, who had become a dentist, built a house on the Haveluloto land and ran his dental practice from there. He did not live on the land as he also worked for the Government and had Government Quarters at Railway Road. Makineti came to Tonga again in 1976 and was unhappy that Moi had built the house on the land. At that time she made significant extensions to the house and developed the property by fencing and plantings so that the house would accommodate all the family when they visited.

[13] In 1982, Moi had the Haveluloto land registered in his name without Makineti‟s knowledge. A deed of grant was issued to him on 22 December 1982. The allotment is 38.2 perches in Book 108 Folio 57. At paragraph 31 of her brief of evidence, Markineti says that Moi had registered the land when he knew that the Fielakepa had died and that the Fielakepa‟s successor was not aware of the gift of the land to her.

[14] Moi borrowed money on the security of a mortgage over the Haveluloto town allotment. A number of advances were made to him between 1983 and 1996. There is no evidence as to how that money was used. The mortgage was discharged in April 1999, shortly after Moi‟s death in January 1999. Makineti says that it was only after Moi‟s funeral that she learned that Moi had registered the Haveluloto town allotment in his name.

[15] After Moi‟s death the Haveluloto town allotment and the tax allotment at Ofolanga were transferred to his widow „Ana. „Ana moved to live on the Haveluloto town allotment and it continued to be used for the dental practice. That business was taken over by Moi‟s son, William, who is also a dentist. I understand that the business still operates from the allotment.

[16] „Ana died on 31 July 2011 and Benjamin claimed the Haveluloto town allotment and the tax allotment at Ofolanga as Moi‟s heir. Benjamin has a town allotment at Popua but intends to surrender that in favour of the Haveluloto town allotment. Upon investigation of the application by the Ministry of Lands, the fact that Moi had a town allotment at Mo‟unga‟one was discovered. On 18 November 2011, the Minister of Lands determined that Moi‟s registration of the Haveluloto town allotment was null and void under section 48 of the Land Act. It followed, in the Minister‟s view, that

Benjamin was not entitled to registration upon succession. The Minister directed that the Haveluloto town allotment revert back to the estate holder to decide what to do with it.

Did Moi receive a prior grant of the town allotment at Mo'unga'one?

[17] Mrs. Taumoepeau referred me to sections 120 and 121 of the Land Act and submitted that only a deed of grant was conclusive proof of ownership of land. She argued that as no deed of grant was ever issued for the town allotment at Mo‟unga‟one Moi had not in fact been granted that land. On this basis Moi‟s registration of the Haveluloto town allotment was not a mistake nor was it unlawful. I do not accept this submission.

[18] Section 43 of the Land Act provides that every Tongan male is entitled to a tax and town allotment provided he is not already in possession of one. An applicant must make an application in the prescribed form to the Minister of Lands, produce his birth certificate or some other proof of his date of birth and pay the prescribed fee. Sections 120 and 121 require that deeds of grant of allotments shall be prepared in duplicate in the prescribed form (along with a diagram of the land), that one copy be delivered to the grantee and the other is registered by binding the same in a book called the register of allotments. However, sections 120 and 121 are procedural only.[1] 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.[2] In Lisiate and anor v Eli and ors the Court of Appeal quoted with approval the words of Hunter J in Fifita Manakotou v Vaha'i (Noble) at page 123 as follows:

Although registration is very strong evidence of ownership I can find nothing in the Act to say that a person claiming an allotment must be able to show he is registered as the holder of that allotment. Nowhere does the Act make registration the test of ownership. The intention of the Act is that registration will be method of proof, nothing more....

[19] There is ample evidence that Moi was granted a town and a tax allotment at Ha‟apai and that he exercised rights of ownership over his allotments. Moi went to Ha‟apai to apply for his father‟s tax and town allotments and he returned with a receipt confirming his registration. Moi‟s name was entered in the register of allotments for both the tax and town allotments. There is no suggestion that the entries refer to anyone else. The fact that no deed of grant was issued was adequately explained by Mr. Halatanu when he said that tax allotments at Mo‟unga‟one had not been surveyed until the 1950‟s or 1960‟s and town allotments had still not been surveyed. Mr. Halatanu said that despite the fact that deeds of grant have not been issued, landowners are aware of their boundaries and are able to occupy their land without survey maps. There is also the fact that the deeds of grant issued to Moi in respect of his tax allotment contained the parenthesis „Mo‟unga‟one‟. This was recognition that Moi had his town allotment there. In addition, Moi visited the allotments on his trips to Ha‟apai, arranged for Paula Kolo to look after his allotments for him and spoke of them to his siblings.

[20] For these reasons I find that Moi was granted the town allotment at Mo‟unga‟one in 1953 and was the owner of it, notwithstanding the fact that no deed of grant was ever issued to him.

What is the effect of the prior grant?

[21] Section 48 of the Land Act provides as follows:

No person who already holds a tax allotment or town allotment shall be granted a second allotment of the same kind as he already holds and any such grant shall be null and void.

[22] Mr. Kefu argues that a person who „holds a tax allotment or town allotment‟ for the purposes of the section is a person who has been granted a tax allotment or town allotment. I agree with that submission. The word „holds‟ cannot refer to the definition of „landholder‟ or „holder‟ in section 2, which is very wide and includes a person who is simply in occupation of land but claiming no greater interest in it. Mr. Kefu submitted that once it is proven that there is an existing grant of an allotment to a person, a second grant of the same kind to that person is null and void by operation of law.

[23] Mrs. Taumoepeau argued that the earlier grant of the Mo‟unga‟one town allotment to Moi was imperfect as there was no deed of grant. She submitted that when there was an imperfect grant followed by a grant perfected by registration the later should prevail. I cannot accept that submission which is contrary to the clear words of section

48. The reference in section 48 to „any such grant shall be null and void‟ is a clear reference to the grant that is second in time.

[24] Benjamin‟s application for the Haveluloto town allotment was made in reliance upon sections 82 and 84 of the Land Act. Section 82 provides that, subject to the life estate of the widow, the succession to a tax or town allotment shall be by way of descent from the last lawful male holder. Section 84 provides that the son or grandson of a deceased holder who already holds a tax or town allotment shall be permitted to make an election between the allotment he already holds and the one to which he becomes entitled as heir. As Moi was not at any stage the lawful male holder of the Haveluloto town allotment, section 82 confers no rights on Benjamin to succeed to the land or to make an election under section 84.[3]

Does an estopped arise?

[25] Mrs. Taumoepeau argues that the Minister is estopped from reversing Moi‟s registration and therefore must register Benjamin as the successor to the allotment. The matters

that are said to give rise to the estoppel are the fact and duration of Moi‟s registration, an alleged breach of a duty of care by the Minister in granting the allotment to Moi if he was not entitled to it, the fact that the Minister had consented to the mortgage over the land, the development of the land by Moi and his family and that Benjamin was not aware that Moi had a town allotment at Mo‟unga‟one. In my view no estoppel can arise in this case for the following reasons.

[26] This cause of action proceeds on what I regard as the erroneous assumption that the Minister took some action which had the effect of rendering Moi‟s registration null and void. I note paragraph 18 of the statement of claim pleads that the Minister had issued a Savingram „directing that the registration of the town allotment ....is null and void‟. Moi‟s registration was not null and void by reason of any act or direction of the Minister but because of the operation of section 48.[4]

[27] Estoppels bind individuals on the ground that it would be unconscionable for them to deny what they have represented or agreed. It is a concept of private law and does not extend to the performance of public duties. A public law authority, such as the Minister of Lands, cannot be estopped from exercising a public discretion or performing a public duty.[5] In refusing to grant the Haveluloto town allotment to Benjamin the Minister was complying with section 19(2) of the Land Act which provides that the Minister has power to make grants of land to Tongan subjects „duly entitled thereto by law‟. Benjamin is not entitled to the Haveluloto town allotment by law. He is not entitled to it because he has no right to succeed to the land under section 82 and, quite independently of that, he has a town allotment and is not entitled to another. The Minister cannot be ordered to grant him land in contravention of the Land Act. The requirements of the Land Act cannot be overridden by estoppel.[6]

[28] In any event, no estoppel could be made out on the facts of this case. The well established principles of equitable estoppel require a claimant to establish against the other party:

• [28.1] A belief or expectation has been created or encouraged by words or conduct of the other party;
• [28.2] To the extent an express representation is relied upon, it is clearly and unequivocally expressed;
• [28.3] The claimant reasonably relied to its detriment on the representation; and

[27.4] It would be unconscionable for the other party to depart from the belief or expectation.[7]

[29] There was no representation by the Minister to Benjamin. Neither the fact and duration of Moi‟s registration nor the approval of the Minister to a mortgage over the Haveluloto town allotment is a representation that Moi‟s interest in the land was beyond challenge. The interest of every registered owner of land is subject to the provisions of the Land Act. Knowledge of the prohibition on holding more than one allotment of the same kind is ubiquitous in Tonga.8

[30] There is no evidence either that Benjamin relied on any representation of the Minister nor did the evidence come near to establishing unconscionability.

[31] For the same reasons, no statutory estoppel could arise under section 103 of the Evidence Act either.

Consultation

[32] Mrs. Taumoepeau did not rely on this ground in her written or oral submissions but it is raised in the pleadings and I will deal with it. The argument is that the Minister was required to consult with Benjamin. No such obligation arose. The Minister has not exercised any discretion. He was concerned with the application of section 48 and the rules of succession. The Minister considered, correctly, that Moi‟s registration was null and void. He had no power to the grant the land to Benjamin in those circumstances and there was no issue upon which he was required to consult with him.[8]

THE RESULT

[33] Benjamin‟s claim is dismissed.

[34] The parties should try to reach agreement on costs but if they cannot then they are to submit memoranda within 21 days.

O.G. Paulsen

DATED: 4 August 2015. PRESIDENT

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^[1] Lisiate and anor v ‘Eli and ors [AC 23 of 2011, 27 April 2012] at [27].
^[2] Fifita Manakotou v Vaha’i (Noble) Volume II 1923-1962 Tonga L.R. 121, Ongosia v Tu’inukuafe and Minister of Lands [1981-1988]
Tonga LR 113, Mesiu Moala v Tu’I’afitu & Anor [1956] Vol II Tonga LR 104 and Lisiate and anor v ‘Eli and ors [AC 23 of 2011, 27 April 2012] distinguishing Folau Tokotaha [1923-1962] Tonga LR 159.
^[3] Minister of Lands, Fotu, Ma’u and Pohiva v Ngahe [1974-1980] Tonga LR 40.
^[4] Sete v Palu LA 11 of 2014, 13 July 2015.

^[5] Regina v East Sussex County Council Ex Parte Reprotech (Pebsham) Limited [2002] UKHL 8; [2002] 4 All ER 58, Challis v

Destination Marlborough Trust Board Inc [2003] 2 NZLR 107, South Buckinghamshire District Council v Flanagan [2002] EWCA Civ 690; [2002] 1 WLR 2601 and Arms and Stratagem Trustee Services Ltd and ors v New Plymouth District Council [2008] NZHC 684.

^[6] This issue has previously arisen in a Tongan context in Sione Tonga v Minister of Lands Vol II 1923-1962 Tonga
L.R 96
^[7] Blakesfield Limited v Foote [2015] NZHC 1325. ⁸ Lisiate v Eli at [35].
^[8] Schaumkel v ‘Aholelei [2013] TOCA 1