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Land Court of Tonga |
IN THE LAND COURT OF TONGA
NUKU’ALOFA REGISTRY
LA 31 OF 2014
BETWEEN:
DOWAGER PRINCESS TU’IPELEHAKE
Plaintiff
AND:
MINISTER OF LANDS
AND:
VILIAMI SIONE NGU TUKU’AHO
(H. S. H. PRINCE TU’IPELEHAKE)
- Second Defendant
Mrs P. Tupou for the Plaintiff
A. Kefu SC (Acting Attorney General) for the First Defendant
W. C. Edwards SC for the Second Defendant
Before Mr Justice M. D. Scott and Madam Assessor L. Koloamatangi
Introduction
[1] For the sake of convenience and the avoidance of confusion but with the greatest respect and with the consent of counsel, much simplified forms of the names of the principal actors who are or have been involved in the subject matter of these proceedings will be used.
[2] The land in question, having an area of 2 acres 1 rood and 18.8 perches known as Fatai Vol 19 Folio 28 was registered in the name of Sione Ngu Fatafehi Manumataongo Tuku‟aho, Prince Tu‟ipelehake (Fatafehi) on 17 March 1939. A copy of the deed with a plan of the land is Document D1-1.
[3] Fatafehi had two sons, Prince „Uluvalu Tuku‟aho („Uluvalu) and Prince Viliami Tupoulahi Mailefihi Tuku‟aho (Mailefihi). In April 1989 the allotment was divided into two parts. The northern part, named Fataimoemanu and consisting of 1 acre 3 roods 32.9 perches was retained by Fatafehi but the southern portion having an area of 1 rood 24.2 perches and named Fatai Si‟i was registered to Mailefihi. Plans of the two portions after the division are at D1-3 and D1-7. It should be noted that D1-3 purportedly dated November 1926 was in fact created in April 1989.
[4] On 6 June 2000, following the death of his father, Fatafehi, the northern part was registered in the name of „Uluvalu, his heir and successor to the title of Prince Tu‟ipelehake.
[5] Very sadly „Uluvalu died suddenly in the USA in July 2006, without legitimate male issue. The title and hereditary estate were inherited by Mailefihi.
[6] Fataimoemanu was not part of the hereditary estate but is crown land; its devolution following the death of the previous holder is accordingly governed by Division VII of the Act.
[7] Section 48 of the Act provides that no person may hold more than one town allotment.
[8] Section 84 provides:
“Save and except a son or grandson of the deceased holder, no person who already holds a tax or town allotment shall be permitted to succeed as heir to another allotment of the same kind as the allotment he already holds or to choose between an allotment already held by him and one to which he becomes entitled as heir.”
[9] By operation of section 82(e) Mailefihi was „Uluvalu‟s heir but as he was not his son or grandson and already had a town allotment of his own, Fatai Si‟i, prima facie section 84 prevented him from inheriting „Uluvalu‟s allotment or choosing between that allotment and the allotment that he already held (Vitikami Ma’afu v Minister of Lands [1923-1962] To.L.R 119).
[10] On 27 March 2007 Mailefihi wrote to the then Minister of Lands, Lord Tuita. A copy of his letter is D1-10. He sought “transfer” of „Uluvalu‟s allotment to him “as heir in accordance with the law.” He explained
that following his brother‟s death he had inherited the title Prince Tu‟ipelehake and that he wished, by “combining” Fataimoemanu with Fatai Si‟i to restore the whole Fatai allotment to its original state.
[11] On the same day the Minister was briefed by a lands officer (D1-12) and consented to the “transfer request”. According to Principal Lands Officer Sione Uele the necessary consequential amendments were made to the Register (D1 24 & 25). It is however not disputed that no fresh deed of grant reflecting consolidation of the two allotments, Fataimoemanu and Fatai Si‟i has ever been issued.
[12] On 15 January 2011 Mailefihi married the Plaintiff. She was his fourth wife. His first wife Mele Vikatolia had given birth to his only son Viliami Sione Ngu Tuku‟aho, Prince Tu‟ipelehake (Sione Ngu – the Second Defendant) on 5 January 1986.
[13] Mailefihi died on 14 June 2014. He was survived by his widow, the Plaintiff, by his son and heir Sione Ngu and his daughter Taone.
[14] At some point, the Court was not told when, Fatai Si‟i had been leased out. Mailefihi and the Plaintiff lived in a decent-sized house located in the southern part of Fataimoemanu. Also standing on that allotment are the offices of Air New Zealand and another sizeable building formerly occupied by Chathams Pacific. Apparently these buildings were let out by Mailefihi (on terms which were not revealed) who was receiving rent of about $2000 per month.
[15] In July 2014 Mrs Tupou, acting for the Plaintiff, approached the First Defendant ( the Minister) and sought acceptance of her client‟s claim to the whole re-combined allotment of Fatai as Mailefihi‟s widow (section 80). After several exchanges the Chief Executive Officer of the Ministry wrote to Mrs Tupou (Document P-13). Paragraphs 8, 9 & 10 of the letter are as follows:
“8 – On 20 August the Lord Minister had directed that the transfer and registration to Viliami Tupoulahi Mailefihi Tuku‟aho (of the combined area) be cancelled on the grounds that it was a breach of section 84 of the Land Act. Therefore, the allotment had reverted to the Crown and was available for grant.
[16] A copy of the deed of grant to Sione Ngu is D1-19-20. It will be appreciated that the land granted to Sione Ngu as a tax allotment named Fatai is exactly the same piece of land known as Fataimoemanu previously held by „Uluvalu as his town allotment.
Proceedings commenced
[17] Proceedings were commenced on 7 November 2014. The Plaintiff claimed:
- (i) That the Minister had no power to reverse his predecessor‟s decision of 27 March 2007;
- (ii) That his predecessor‟s decision was good in law;
- (iii) That the Minister‟s section 84 – based decision was bad in law and tainted with bias (section 159);
- (iv) That the allotment previously known as Fataimoemanu had been combined with Fatai Si‟i and was accordingly not available to be granted to Sione Ngu;
- (v) That the allotment previously known as Fataimoemanu was not available for regrant as it was lawfully being occupied by the Plaintiff;
- (vi) That the Minister failed to make sufficient enquiries about the situation at Fataimoemanu and therefore the grant to Sione Ngu was vitiated;
- (vii) That the Plaintiff was entitled to the registration of the whole of Fatai in her name;
- (viii) That the Plaintiff was entitled to reside in one of the houses erected on Fatai; and
- (ix) That the Plaintiff was entitled to the rents paid by the tenants occupying Fataimoemanu.
[18] Put shortly, the Minister‟s defence was that:
(i) The March 2007 decision breached section 84;
(ii) The Minister has a duty to ensure compliance with the Act;
(iii) He has inherent power to cancel grants or approvals for grants made in breach of the Act;
(iv) There was nothing to show breach of section 159; and
(v) He was in possession of sufficient information, including
representations from the Plaintiff, before reaching his decisions in August 2014;
He sought dismissal of the Plaintiff‟s claim to possession of Fataimoemanu and rejection of her claim to any of the properties standing on the land as being without the jurisdiction of the Land Court.
[19] Sione Ngu‟s defence did not differ materially from that of the Minister.
[20] All Counsel filed comprehensive written closing submissions for which I am grateful.
Consideration of the issues
[21] The First Defendant asserts that section 84 operated to prevent Mailefihi inheriting Fataimoemanu for the reasons set out in paragraph [9] above. In my view that assertion is plainly correct, the consequence being that by virtue of section 83 Fataimoemanu reverted to the Crown. Upon reversion it became available for regrant under section 88, but not, by reason of sections 43(1) and 48 to someone who already had a town allotment. Since Mailefihi already had a town allotment I find that the former Minister erred when he, in effect, granted approval for the regrant of Fataimoemanu to Mailefihi.
[22] It was not asserted on behalf of the Plaintiff that Fataimoemanu could legally be granted to Mailefihi, rather Mrs Tupou relied on the fact that approval for the grant had been given and approval entered in the register. Even though no deed was ever issued the Court will recognise grants which are merely procedurally defective or partially incomplete (see, for example Lisiate v Eli [2012] TOCA 13) .
[23] Following the approval, Mailefihi entered onto Fataimoemanu which he then treated as his own. In due course he took the Plaintiff there to live with him. He paid off a mortgage and had dealings with tenants occupying a substantial portion of the allotment.
[24] Mrs. Tupou submitted that while the grant had not been formalised Mailefihi and the Plaintiff were nevertheless, lawfully on the land and lawfully used it as their own. I agree.
[25] It is not disputed that the approval of the grant to Mailefihi was never challenged prior to his death, not in fact, until the Plaintiff noticed that rent payments had apparently stopped.
[26] Mrs. Tupou submitted that since Mailefihi was lawfully on Fataimoemanu and the Plaintiff was entitled by law to a life interest in his allotment she was therefore entitled to a life interest in the combined allotment Fatai. She referred to Mahe v Tatafu & Ors [19741980] To.L.R 20 and to ‘Ilavalu & Anr v ‘Ilavalu & Anr [1981-1988] To.L.R 1. In my view neither of these authorities assists the Plaintiff. In the first, the Court merely corrected an error in the register. In the second the Court held that an allotment registered pre 1927 could devolve in its entirely after 1927 despite exceeding the size limit imposed by section 49.
[27] In my opinion although Mailefihi was lawfully on the land sections 84 and 48 would have rendered any completed grant to him null and void. Since he was not entitled to the grant he did not become the “lawful male holder” of Fataimoemanu. A lawful occupant of land who does not lawfully hold it does not have any estate to pass on to his widow in accordance with section 80.
[28] Mrs. Tupou suggested that the First Defendant had no power to cancel or reverse an approval given by his predecessor. In my view however, since the approval was plainly inconsistent with sections 84 and 48 and the facts were not in dispute, the decision reached by him cannot be faulted. It is what occurred after the reversal of the approval that gives rise to greater concern.
[29] Ever since Tafa v Viau [2006] To.L.R 287 it has been settled law that before reverted land can be granted out again the Minister must make reasonable enquiries to satisfy himself that the land (whether Crown or Estate) in question is available. In Finau v Minister of Lands & Anr [2012] TOCA 9 the Court of Appeal clarified that Tafa:
“is not authority for the cumulative propositions that the statutory requirement in section 50 that land be available is, as a matter of law, a precondition to grant and that lawful occupation by someone other than the potential grantee renders the land unavailable. The case only establishes the element of the first proposition, namely that the Minister must consider whether the land is available before making the grant. A failure to do so vitiates the grant.”
[30] Later in the judgment the Court said:
“we have not sought to determine what “available” means for the purposes of section 50 ..... Also there is a real question which may have to be determined in another case at a later time. It is whether the Act entrusts to the Minister the determination of the question whether land is “available” as a matter of fact for the purposes of section 50 having regard to the circumstances of the particular case 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.”
[31] The present case again brings that question into focus. Having made certain enquiries (the precise nature of which was not revealed to the Court) and having received representations by Mrs. Tupou on behalf of the Plaintiff, the Minister decided that:
“the allotment had reverted to the Crown and was available for grant” (Uele brief of evidence paragraph 10).
[32] I am not satisfied that the enquiries made took all relevant factors into account or that the decision reached was the correct one. I arrive at this conclusion for three principal reasons.
[33] First, Mailefihi was lawfully on the land as a result of a promise made to him by the Minister who had authority to make such promises and whom Mailefihi was entitled to presume had made a promise that was not contrary to law. As a result of this promise he moved into lawful occupation of the land and apparently spent considerable sums on improving it. A mortgage debt of $500,000.00 was apparently discharged. In my view it is at least arguable that Mailefihi and the Plaintiff could have resisted any attempt to dispossess them on the grounds of promissory estoppel.
[34] Second, Church of Jesus Christ LDS v Fepale [2011] To.L.R 71 is authority for the proposition that land subject to a lease which has reverted cannot be regranted until the leases have expired. There is nothing to suggest that the exact nature of the occupancy agreements of the “tenants” established on the bulk of the property was ever investigated. Prima facie the grantee of an allotment is entitled to vacant possession. In this case the allotment was not vacant at all.
[35] Thirdly, it was central to the First Defendant‟s case that he had a duty to correct illegality and ensure that the limitations imposed by the Land Act were strictly complied with. As had already been noted Fataimoemanu was previously registered as a town allotment. It was far larger than allowed by section 49 however the section did not apply to the original grant as it was pre 1927. When however it reverted after „Uluvalu‟s death it was no longer possible to regrant it in its original form because of its size. Therefore it was decided to re-label this piece of land in the centre of town, as a tax allotment.
[36] Section 74 (1) of the Act provides that:
“Every male Tongan subject who has been granted a tax allotment by the Minister shall within one year from the date of the grant have growing on such allotment 200 coconut trees
.....”
It is plain that this requirement of the Act cannot, by reason of the fact that the allotment is substantially covered with large buildings, be complied with. It may be argued, as suggested by Mr. Edwards, that this provision is not enforced. I do not think however that the Minister can decide to be complicit in the evasion of the requirements of the statute. It might also be suggested that the buildings are not part of the land (Kolo v Bank of Tonga [1997] To.L.R 181,183) and should therefore be disregarded. In my opinion however they would present a budding palm planter with insuperable obstacles. Samuel Johnson‟s refutation of Bishop Berkeley comes to mind.
[37] I have some sympathy with the Minister who, it appears, is presently burdened with the duty to carry out a form of quasi-judicial enquiry into quite complicated issues of law and fact before arriving at his decision to regrant. This is precisely the kind of enquiry which the Royal Land Commission recently described as “inappropriate” and which it recommended should cease. When dealing with applications from relatives there is some risk of not being seen to act independently. Although I am satisfied that no bias has been shown in this case (and Counsel should be cautious before making such an allegation) the Minister might consider seeking a declaration from the Court under section 150 rather than try to resolve this problem himself.
[38] The last matter is the claim under the Probate Act. Following Mortimer & Anr v Fe’aomoeata & Ors (AC 2 of 2015 – LA 12 of 2012] I would hold that this question:
“Concern(s) a dispute about land and interests in land within the meaning of s 149 (1) (b)” and, accordingly this Court has the jurisdiction to decide the issue. It would certainly be much more convenient if that were the case. In my opinion however determination of this question should follow disposal of the appeal from this judgment when the question may well become moot. There was also a dearth of information to assist the Court to decide the matter. Perhaps a visit to the land would be appropriate if the issue remains live.
Result: 1. The deed of grant issued to the Second Defendant must be cancelled;
2. Cancellation of the deed is stayed until disposal of the appeal, or further order;
3. No order is made on the Probate Act application;
4. I will hear Counsel as to costs.
JUDGE
NUKU’ALOFA: 7 August 2015.
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