Naulu v Tupou [2015] TOLC 9; LA14.2008 (7 August 2015)

IN THE LAND COURT OF TONGA
NUKU'ALOFA REGISTRY

LA 14 OF 2008

BETWEEN:

FILILANGI NAULU
Plaintiff

AND:

'AMANAKI 'A TONGA TUPOU
First Defendant

AND:

HON. HAVEA LASIKE
Second Defendant

AND:

MINISTER OF LANDS
Third Defendant

Before Mr Justice M. Scott and Madam Assessor Koloamatangi

Hearing : 15, 16 July 2015.
Counsel : L.M. Niu SC for the Plaintiff
S. T. Tu'utafaiva for the First Defendant
Second Defendant in person
S. Sisifa SG for the Third Defendant

JUDGMENT

[1] The Plaintiff is the son of Tevita Naulu who died earlier this year. Tevita had for many years lived on and cultivated a tax allotment at Lakepa known as Lokoloko. He lived there prior to his marriage and then after his marriage brought up his 8 children on the land. There was a traditional Tongan fale there and a partially completed concrete house. It is not in dispute that he planted many fruit bearing trees on the land and also kept animals.

[2] The whole time Tevita was in occupation of the land it was registered in the name of Siosaia 'Oto Tupou ('Oto), who was granted the land in 1948. Some time after the grant 'Oto left for England where he lived with his English wife and two daughters. He did not return to Tonga until 2001, shortly before his death in November 2002.

[3] There was no evidence to show how it came to be that Tevita moved onto 'Oto's land but on the other hand there is nothing to show that 'Oto was not agreeable to the arrangement. The Court was not told that 'Oto at any time, before or after his return, asked Tevita to leave. I am satisfied that Tevita went onto the land with 'Oto's permission and that this permission was not revoked. Although Tevita and his family ceased inhabiting the land in about 1993 he continued to cultivate the land himself until 2007 when he became ill. His son Pohahau told the Court that he took over the planting from his father in 2008 and is still working the land today.

[4] 'Oto had no heir and the Court was told that no claim was lodged by anyone with the Ministry of Lands in the 12 months following his death. In these circumstances the Second and Third Defendants were of the view that the land reverted to the Estate Holder (the Second Defendant) either, presumably, immediately upon 'Oto's death (Land Act – Section 83) or at the very latest, 12 months thereafter (section 87)

[5] On 5 November 2006, just under four years after 'Oto's death the First Defendant filed a Form 9 Application for the land to be granted to him under the provisions of section 43. The application was supported by the Second Defendant as Estate Holder. On 8 November, after the First Defendant had met the then Minister of Lands, Lord Tuita, a briefing was prepared in the Ministry by M. Matekitonga, a lands officer. A copy of this brief is document D-3-6. The Minister accepted the recommendation that the application was in order and on 3 March 2007 the First Defendant received his deed of grant of the land (Document D-3-10).

[6] On 7 December 2006 (presumably after he had become aware that his application had been successful but while awaiting receipt of the Deed) the First Defendant wrote to Tevita (Document P – 9). He gave Tevita immediate notice to quit the land. Tevita did not comply and on 24 June 2008 proceedings in this Court were commenced.

[7] The Writ and Statement of Claim named Tevita as the First Plaintiff and his elder son Fililangi Naulu as the Second Defendant; he was described as being "a driver (Lakepa)". This description of the Second Plaintiff was incorrect: the undisputed evidence of his sister Ma'ata Mahina was that Fililangi Naulu left for the USA in 1991 or 1992, that he lives there with his wife and children and that he is "in the process of filing his papers". It is the duty of Counsel to ensure that the location of parties is correctly described not least because a Plaintiff who resides ordinarily out of the jurisdiction may be required to furnish security for costs (see RSC O.17.)

[8] The pleadings as advanced on the day of the trial had not been amended to reflect the fact that Tevita had died and that his son Fililangi Naulu was the sole surviving Plaintiff. (see the White Book 1988 – 15/7/8). This failure to make application for directions following the death of Tevita caused inconvenience.

[9] The basis of the Plaintiff's claim was:-

(i) that the Second Defendant "promised" the land to Tevita;
(ii) that he broke his promise by supporting the First Defendant's application;
(iii) that the Second Defendant did not tell the Third Defendant that the land had been lawfully occupied by Tevita for decades;
(iv) that the Third Defendant made no enquiries to find out the truth about the land before granting it to the First Defendant;
(v) that the land was not available to be granted to the First Defendant;
(vi) that Tevita had "a legitimate expectation to own the land"; and
(vii) that the First Defendant had no right to evict Tevita from the land.

[10] The First Defendant denied that Tevita and the Plaintiff were occupying the land. He asserted that the grant to him was lawful.

[11] The Second Defendant denied giving any assurances to Tevita in respect of the land or promising it to him. He pleaded that following 'Oto's death the land had reverted to the estate and had then been properly granted to the First Defendant in accordance with the provisions of the Land Act.

[12] The Third Defendant pleaded that following the death of 'Oto, the land had reverted and became available for regrant. No inspection of the land was required as "the granting of the land was based on the information provided by the Second Defendant's father" (the late Lord Lasike).

[13] The principal witness for the Plaintiff was his sister Ma'ata Mahina. She told the Court that she had gone with Tevita to see the Second Defendant about three months after 'Oto's death. Her father told her that the Second Defendant "told him to remain on the allotment". About 9 months later Tevita again went to see the Second Defendant. She saw them shake hands and heard the Second Defendant tell Tevita "to go and plant kava for him and that he could remain on the land". She and her father were shocked and distressed when they first heard that the land had been registered in the First Defendant's name. The first they knew of the registration was when the town officer gave them a letter to vacate.

[14] In cross examination by Mr Tu'utafaiva Ma'ata claimed that the former Lord Lasike had encouraged Tevita to approach 'Oto to have the land transferred to him. This, however, had not been possible as they did not know how to contact him in England. When 'Oto returned to Tonga not long before he died he went to stay with the First Defendant and remained there until he passed away.

[15] In re-examination Ma'ata told the Court that after 'Oto returned, Tevita and the whole family went to see 'Oto, taking with them a quantity of food harvested from the land. "Tevita said I have come to thank you. I am here today to return your land. My family has survived. We have carried out our obligations and I hereby return your allotment to you". 'Oto did not accept but said "stay on the land and continue to carry out your obligations. Return to the land and continue to look after your children".

[16] The First Defendant told the Court that he had grown up at Lakepa. His father's land adjoins the land in issue. He was aware that the land belonged to 'Oto and that Tevita was cultivating it. After 'Oto came back and stayed with him, Tevita came to the house. He asked 'Oto for the land but 'Oto refused "he told him to return to Masilamea when he knows he has an allotment". 'Oto told Tevita that the land belonged to 'Oto's family. According to the First Defendant Tevita visited him three times to ask for the land but each time he was refused. It is not in dispute that 'Oto made no arrangements for the surrender and regrant of the land before his death.

[17] In cross examination the First Defendant told the Court that he spoke to the Second and Third Defendants before applying for the land. He told the Third Defendant that Tevita was farming the land. The Second Defendant already knew this. He want to look at the land before he applied for it. The fale and unfinished house had gone, only the concrete slab remained.

[18] The Second Defendant told the Court that he lived at Lakepa. He inherited the title from his father in 2001. He knew Tevita and the land in dispute. As long as he could remember Tevita has been cultivating 'Oto's land but he did not know the details of the arrangement between them. He knew that Tevita and 'Oto were related through 'Oto's mother whereas the First Defendant and 'Oto were related through 'Oto's father.

[19] The Second Defendant told the Court that Tevita came to see him after 'Oto's death and asked for the land to be registered in his name. The Second Defendant told Tevita that the land had reverted to him and would be regranted as provided for in the Land Act. He knew Tevita was a kava planter and he told Tevita that he could plant kava on the Second Defendant's land. He denied ever promising Tevita that he could have the land either before or after 'Oto's death. As to Tevita's son, the Plaintiff, he knew nothing about him and had never met him. Tevita had never mentioned him at all.

[20] The last witness was Warrick Vea, a Lands Registration Officer. He confirmed that the only applicant for the land was the First Defendant. No other application, either formal or informal had been received by the Ministry. The essential facts, as assessed by the Ministry, had been embodied in the brief to the Minister (Document P4-5) who, apparently six days after receiving the brief, had approved it.

[21] Vea agreed that the Ministry had not inspected the land before the grant was approved. The Ministry's policy was not to inspect land proposed for regrant out of Hereditary Estates unless some dispute in regard to the land was brought to their attention; otherwise they relied on the Estate Holder who, in this case had certified that there was no impediment to the application being granted.

[22] As already mentioned, the original claim for the land to be granted to Tevita had to be abandoned following his death. This event presented Mr Niu with considerable difficulties in advancing the case as first pleaded. With characteristic, conscientiousness he presented careful and comprehensive written submissions. These were answered orally by the Defendants.

[23] Mr Niu's central submission was that it is clear from authority that the Minister has a duty to make reasonable enquiries before land is regranted (Tafa v Viau [2006] To.L.R 287). He failed to do so and, had he done so, he would have discovered that Tevita was in lawful occupation of the land which was accordingly unavailable for regrant. Mr Niu submitted that the grant to the First Defendant was vitiated by the failure to make due enquiries and therefore the grant should be set aside. The matter should be remitted to the Minister for reconsideration after giving any rival claimants an opportunity to be heard.

[24] As stated in paragraph 3 above, I am satisfied that at all times prior to 'Oto's death Tevita was lawfully on the land. The question that has however to be asked is whence did that lawfulness arise? Since the land was not registered in his name he could only lawfully be on the land either as a licencee or as the beneficiary of an equity.

[25] A licencee cannot have a better right to occupy the land than the donor of the licence and in this case the donor 'Oto died and his interest in the land died with him since he had no heir. The licence expired at the same time.

[26] There is no evidence at all that 'Oto ever agreed with Tevita that Tevita would have the right to remain on the land as long as he (Tevita) wished and in my opinion the evidence of Ma'ata (paragraph 15 above) suggests that Tevita was well aware that his tenure of the land depended on 'Oto's continuing agreement. In my view there is no evidence to show the creation of a proprietary estoppel as between 'Oto and Tevita, let alone one between 'Oto and Tevita's son, the Plaintiff. In any event, with the death of 'Oto without an heir, the land reverted by operation of statute to the Estate Holder. I do not accept that any equitable right that Tevita might have had could survive that reversion and become binding on the Estate Holder.

[27] There is no reason not to accept Ma'ata's evidence that the Second Defendant told Tevita that he could continue cultivating the land. But the giving of this permission to cultivate reverted land does not amount to an undertaking to allow Tevita to continue the occupation of the land following its regrant to another person. I accept the Second Defendant's evidence that he told Tevita that the land would be regranted in accordance with the provisions of the Land Act and that in his view those provisions favoured an applicant who could rely on descent through the male line. Tevita himself never made a formal Land Act application for the land. In my opinion this tends to show that he was aware that the Second Defendant would not support such an application.

[28] In paragraphs 23 and 24 of his written submissions Mr Niu stated that the Third Defendant was unaware, when the land was applied for, that it was being cultivated by Tevita. This submission was withdrawn when I pointed out that I had recorded in my minute book the First Defendant's evidence: "I told the Minister that Tevita was farming the land".

[29] In Finau v Minister of Lands & Heimuli (AC 9 of 2012) paragraph [14] the Court explained that Tafa v Viau (above) is not authority for the proposition that lawful occupation by someone other than the potential grantee renders the land unavailable. It is however authority for the proposition that the Minister must consider whether the land is available before making a grant.

[30] In my view the extent of the enquiries that the Minister must make clearly depends on the circumstances of the case. Where there are competing applications or when the position is not at all clear then a detailed investigation has to be carried out. An example of this situation may be found in Tevita To'a v Taumoepeau & Minister of Lands (LA 10/12). In the present case, however, there was only one applicant and the land had reverted to the Estate Holder. The person cultivating the land who did not himself apply for a grant, was doing so with the consent of the Estate Holder, not 'Oto, and the Estate Holder had supported the First Defendant's application to the Minister. In these circumstances I am satisfied that adequate consideration was given by the Minister to the question whether the land was available for grant and that he arrived at the correct conclusion in deciding that it was.

Result: The Claim is dismissed. The Defendants are to have their costs, to be taxed if not agreed.

JUDGE
7 August 2015.
NUKU'ALOFA