Folau v Taione [2016] TOLC 2; LA 06 of 2015 (18 April 2016)

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Counsel : Mr. L. Niu SC for the plaintiff
Mr. S. Tu'utafaiva for the first defendant
Mr. 'A. Kefu SC for the second and third defendant

[1] The plaintiff (Mr. Folau) alleges that a town allotment at Vaini (being Lot 5 SP5879) was granted to him in February 1997. It was never registered in his name. Eighteen years later, in 2015, the second defendant (the Minister) granted and then registered the land (Deed of Grant Tohi 354 Folio 93) in the name of the first defendant (Johnny Taione). Mr. Folau says that he was not consulted by the Minister and that the land was not available for grant to Johnny Taione and accordingly the grant made to him was unlawful and should be declared null and void. Mr. Folau seeks an order requiring the Minister to cancel Johnny Taione's registration and to register the land in his name.

[2] The following is a narrative of the facts as I find them to have been proved.

[3] The allotment is at Vaini. The estate holder is the Noble Ma'afu. In 1997 the holder of the title Ma'afu was the father of the present holder.

[5] Mr. Folau is a Tongan national and was born in Vava'u in 1943 but in around 1960 he moved to live at Vaini. He lived with an uncle and attended Beulah College. In 1964 he went to Fiji for teacher training and then returned to Vaini where he taught at Beulah College from 1969 until 1974. During his time living at Vaini he became acquainted with the people and was accepted as a person of Vaini.

[6] Since 1974 Mr. Folau has lived in New Zealand but he has maintained some links with the people of Vaini who live in New Zealand. He has assisted with the establishment of a Tongan branch of the Seventh Day Adventist Church in Auckland and has also assisted people of Vaini to obtain employment in New Zealand.

[7] In addition to this in 1990 the daughter of the former Noble Ma'afu went to New Zealand to raise money for a sound system for the Church. Mr. Folau extended hospitality, accommodation and food to her and the large group accompanying her. The fund raising was not successful. Mr. Folau then did his own fund raising and managed to collect NZ$11,000. As a result the sound system was acquired and installed and presented to the Noble Ma'afu's daughter. The Noble Ma'afu was so pleased that he wanted to gift Mr. Folau land from an area between Beulah College and Hu'atolitoli Prison, which he was in the process of sub-dividing into town allotments. The Noble Ma'afu showed Mr. Folau the area and where his particular allotment would be.

[8] In 1996, after the sub-division had been completed, Noble Ma'afu forwarded to Mr. Folau in New Zealand an application form for the allotment. Mr. Folau was to sign and return it so that it could be lodged with the then Minister of Lands, Noble Fakafanua. The application form was already signed by Noble Ma'afu as estate holder and that signature was dated 8 January 1996. Although it is not without some doubt I am satisfied that there accompanied the application form a hand drawn sketch plan showing the allotment and three other allotments relative to the boundary of Beulah College and a road running along that boundary connecting with Taufa'ahau Road. The allotment was marked "Required area *". The evidence was that it was common practice at that time for sketch plans to be drawn on the back of application forms to identify the allotment that was being applied for.

[9] The allotment Mr. Folau was applying for was situated between the allotments of Taufa Pulu to the north and Sione Taione to the south. The allotments of both Taufa Pulu and Sione Taione had already been surveyed, pegged and registered. All three allotments are of regular shape and are bordered on one side by a surveyed road and on the other by allotments. This meant that the boundaries of the allotment that Mr. Folau was applying for had effectively been surveyed and pegged.

[10] Mr. Folau signed the application form and forwarded it along with his birth certificate back to Tonga where they were presented to the Land Office. Once received by the Land Office a request was made that the Minister approve that the survey fee be paid. It was the practice at that time that the survey fee was not paid by an applicant until the Minister had approved it to be paid. The request for that approval was made on 20 March 1996 and the Minister gave his approval on 26 March 1996. The survey fee of $40.00 was paid on 30 January 1997.

[11] On 6 February 1997, the Minister signed a savingram giving instructions to the Secretary for Land and Survey to survey and demarcate the town allotment "to this man" (referring to Mr. Folau) as follows:

This allotment has been given to this man on 8.1.1996. Please subdivide in accordance with the map, and it is 0r.30p in size.

[12] The witness called to give evidence for the Minister, Mr. Fataua Halatanu, who is a Senior Land Registration Officer of the Ministry of Lands, confirmed that there was nothing more for Mr. Folau to do to progress his application and that after the instructions contained in the savingram were given by the Minister there was nothing more for the Minister to do but to sign the deed of grant once it had been prepared for his signature.

[13] From this point Mr. Folau regarded the allotment as his own. He arranged for a former co-teacher at Beulah College, Vaioleti 'Ofa, to look after the allotment for him and he sent her money to do the cutting and cleaning of the allotment. In 2000, Sione Taione, who owned and was occupying the contiguous allotment to the south, asked Mr. Folau to let him use and maintain the allotment and Mr. Folau agreed. There is some uncertainty as to the reason Mr. Taione wanted the use of the allotment but nothing turns on that. With the consent of Mr. Folau Sione Taione had the use of and maintained the allotment from 2000 to 2015. Sione Taione was clearly aware that Mr. Folau regarded himself as the owner of the land and recognised his interest in the land by requesting permission to use it.

[14] In December 2013, Mr. Folau retired and he planned to return to Tonga and build a house on the allotment and live on the land during his retirement. In 2014, he came to Tonga to erect a headstone for Vaioleti 'Ofa, who had died in 2013. He visited the allotment on that visit.

[15] On a date that is uncertain, but it appears it must have been after Mr. Folau had returned to New Zealand, he was telephoned by Sione Taione who asked to buy the allotment from him. Mr. Folau said he would not sell the land.

[16] Without Mr. Folau's knowledge, on 24 June 2014 Sione Taione signed and then lodged with the Minister of Lands an application on behalf of his son, Johnny Taione, for the allotment.

[17] On 26 June 2014 Noble Ma'afu signed his consent as estate holder to the grant of the allotment to Johnny Taione.

[18] On 6 August 2014 the Noble Ma'afu, now acting in his capacity as Minister of Lands, wrote to the Secretary of Lands and Natural Resources stating that the Secretary was to cancel Mr. Folau's application for the allotment and to process the application of the first defendant instead. The reasons given were that there was too little land for the people wanting it within his estate, Johnny Taione did not hold a town allotment but had assisted to maintain the subject allotment, Mr. Folau was residing in New Zealand and had not used the land for 18 years and, in the Minister's view Mr. Folau did not value the grant. Mr. Folau was unaware of any of this.

[19] On 21 October 2014 a briefing paper prepared by an Officer of the Ministry to the Minister recommended that the Minister grant the allotment to Johnny Taione and that he sign a draft savingram which was attached to the briefing paper. That briefing paper was checked by another Officer and approved on 22 October 2014. The briefing paper stated, not entirely accurately in my view, as follows:

Estate holder grant the allotment before to Havea Folau on the 8 of January 1996, he [the Minister] cancel his grant on 6.08.2014 (refer letter attached) and also mention that Havea Folau resides at New Zealand over 18 years. From the day he granted the allotment to Havea he has nothing to do with the land.

[20] On 23 October 2014 the Minister approved the recommendation to grant the allotment to Johnny Taione and he signed the savingram. That savingram instructed the Secretary of Lands and Natural Resources to draw up and prepare the deed of grant of the town allotment, which had been formerly given by the estate holder to the plaintiff, to Johnny Taione as follows:

This allotment is no. 5 on S/Plan 5879 and its size is 759.1m² and this portion has not been registered to anyone however it was first granted by the Honourable Estate Holder to Havea Folau on 8 January 1996.

He has cancelled it on 6.08.2014 because this person resides in New Zealand and it has been 18 years from the day of granting his application and he has not done any work to it. Therefore the estate holder has agreed to grant this allotment to this man when he signed his application on 26.6.2014.

[21] The first Mr. Folau knew of these developments was when a staff member of the Lands Office informed him through Facebook. It appears this was her own initiative and that she was motivated out of concern for Mr. Folau. On 28 November 2014, Mr. Folau replied to hold the registration of the allotment in Johnny Taione's name to enable him to travel to Tonga. As it turned out he was not able to get to Tonga until April 2015.

[22] A request was made by Mr. Folau's lawyer for an appointment with the Minister to discuss the matter but the Minister would not agree to any meeting. No explanation was proffered for the Minister's refusal to give Mr. Folau the courtesy of a meeting.

[23] On 20 April 2015 the Minister signed the deed of grant in favour of Johnny Taione and had him issued with a deed of grant and registered as the owner of the allotment.

[24] Mr. Folau's case is that the allotment was lawfully granted to him on 6 February 1997 when the Minister directed that it be surveyed and a deed of grant drawn up for registration of the land in his name. He argues that on the date he made his application he satisfied all other requirements of the Land Act so as to be entitled to receive a grant of the allotment. He also argues that when the Minister decided to grant him the land there was nothing more for him or the Minister to do but to await the deed of grant for signature and registration. It is said to follow that the grant of the allotment to Johnny Taione was unlawful as the land was not available for grant having already been granted to Mr. Folau. In the alternative, Mr. Folau argues that the grant to Johnny Taione was made in breach of the rules of natural justice as he was given no opportunity to be heard before the deed of grant was issued to Johnny Taione and registered in his name.

[25] Johnny Taione argues that Mr. Folau was never granted the land and it was therefore available to be granted to him. In the alternative he argues that Mr. Folau's claim should have been brought within 10 years of 6 February 1997 and is now time barred under section 170 of the Land Act.

[26] The estate holder also raises the defence that the claim is time barred. He denies that the grant to Johnny Taione was made in breach of the rules of natural justice on the basis that Mr. Folau had no right to be heard on Johnny Taione's application for the land as the land was not registered to him, Johnny Taione's father had maintained the land for 15 years, Mr. Folau had lived in New Zealand for many years and had done nothing to develop the land and also, somewhat surprisingly, that Mr. Folau had not acted on advice of Mr. Halatanu to meet with the estate holder at his residence.

[27] The Minister argues that the land was never granted to Mr. Folau on 6 February 1997 or on any other date and that it was open to the estate holder to withdraw his consent to Mr. Folau's application, and to the Minister to 'implement the wishes of the estate holder,' before the grant [to Mr. Folau] was made. Mr. Kefu submitted that the estate holder was entitled to withdraw his consent to Mr. Folau's application because he was not lawfully resident in the estate of Ma'afu at any relevant time, which he said, is a requirement of sections 8 and 50 of the Land Act and because of Mr. Folau's 'non use' of the land. The Minister also argues that Mr. Folau's claim is time barred.

[28] It appears to me that the issues that arise in this case are the following:

[28.2] Did section 50 of the Land Act prohibit the making of a grant of the allotment to Mr. Folau?

[28.3] If the land was not granted to Mr. Folau was the cancellation of Mr. Folau's application and the grant of the allotment to Johnny Taione made in breach of the rules of natural justice?

[29] It is the Minister who has the power to grant land under the Land Act. Mr. Kefu referred me to sections 7, 8, 19(2) and 34 (1) of the Land Act and to 'Ameleki v Nai [2000] Tonga LR 247 which he submitted make clear that the power to grant an allotment resides with the Minister. He rejected, correctly in my view, any suggestion that the power to make grants within a hereditary estate rests with the estate holder (Minister of Lands v Finau [2001] Tonga LR 221 at [29] and Lisiate and Anor v 'Eli and Ors [2012] Tonga LR 31, 37).

[30] It is now well established that registration is simply evidence of ownership of land (Mesui Moala v Tu'i'afitu and Anor [1956] Vol II Tonga LR 104, Tu'i'afitu and Anor v Mesui Moala [1956] Vol II Tonga LR 155, Fifita Manakotau v Vaha'i (Noble) Vol II Tonga LR 121, 123 and Ongosia v Tu'inukuafe and Minister of Lands (1981-1988) Tonga LR 113). Most recently the Court of Appeal in Lisiate (supra) at [31] rejected the view expressed in Folau Tokotaha v Deputy Minister of Lands and Anor [1923-1962] Tonga LR 159 that a person claiming title to an allotment must be able to show that he was registered as the holder of the land. The Court preferred the view expressed by Hunter J in Mesui Moala (supra) and Fifita Manakotau (supra) and quoted with approval the following analysis in Fifita Manakotau where Hunter J said at page 123:

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 a method of proof, nothing more. This was the view taken by the Privy Council in Tu'i'afitu and Anor v Mesui Moala (Privy Council 25.1.57). The Privy Council in the course of their judgment said: It was one of the main contentions of the Appellant both in the Land Court and on the hearing of this appeal that the Respondent was not entitled to succeed in his claim because of his failure to become registered as the holder of these allotments. The learned trial judge held that the Respondent had taken all steps required by the Land Act Section 76 and that whilst registration is evidence of ownership it is not always necessary to prove registration before ownership can be established. With this statement of the law we agreed.

[31] Where the positions taken for Mr. Folau and the Minister diverge is in relation to the proper inference that is to be drawn from the established facts and, specifically, whether Mr. Folau has proved to the required standard that the Minister granted the allotment to him. Mr. Kefu submitted that Mr. Folau was never granted the allotment by the former Minister of Lands, Lord Fakafanua. He accepted that following receipt of Mr. Folau's application the Minister had directed that the survey fee be obtained from Mr. Folau and that the land be surveyed and a map drawn up and a deed of grant prepared for registration purposes. Notwithstanding all that, he argued that it could not be properly inferred from those facts that a grant had been made. Mr. Kefu also referred to the internal memorandum of the Minister of Lands of 6 August 2014 in which there is reference to the grant of the allotment having been made to Mr. Folau. In relation to this, Mr. Kefu submitted that the Minister was proceeding on a mistaken belief that the grant had been made by the estate holder when it is only the Minister who can make a grant of land under the Land Act. For this reason, he argued, the memorandum was not evidence of the Minister making a grant.

[32] In Lisiate the Court was prepared to infer that a grant of a tax allotment had been made as there was evidence to support that inference in the register of tax allotments along with an uncompleted deed in the register of deeds, which was strongly suggestive that a deed may have issued but been subsequently lost. At [30], the Court of Appeal noted that each case must be decided on its own facts. In Manu v 'Aholelei (Unreported, Land Court, LA 13 of 2014, 17 April 2015, LCJ Paulsen) I applied Lisiate and held that one Nafetalai 'Aholelei had been the lawful holder of a town allotment although never registered as such. The evidence that supported that finding was set out in paragraphs 6, 7, 9 and 10 of the ruling and included that Nafetalai was to be given the land by the Minister in substitution for other land lost in a Court case, that Nafetalai had moved on to the land and built a shelter there and raised his family on the land, that Nafetalai had made an application for the grant of the land which satisfied the requirements of Land Act, that his name had been written indelibly on the Ministry of Lands survey plan and a deed of grant had been prepared in his name although never signed by the Minister. As I noted at [10] of the ruling:

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 the 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 have been written on the Plan and the deed of grant prepared after a decision to allocate the allotment was made by the Minister.

[33] The facts of the present case are different from both Lisiate and Manu. There is in this case no evidence from the register of town allotments or by entry on a survey plan nor is there evidence that a deed of grant in favour of Mr. Folau was ever prepared. What Mr. Folau is able to rely on are the following matters. First, it was not disputed that Mr. Folau had taken all the steps required of him by the Land Act to obtain a grant and the Minister had done everything that he had to do save signing the deed of grant once it was prepared (Tu'i'afitu and Anor v Mesui Moala [1956] Vol II Tonga LR 155). Secondly, the Minister required payment of the survey fee. As I have noted, the evidence was that at the relevant time survey fees were only payable once a direction to that effect had been received by the Minister. That the Minister required Mr. Folau to pay the survey fee must indicate his intention to grant the allotment to Mr. Folau. Thirdly, there are the terms of the Minister's savingram of 6 February 1997 which I have set out earlier. The content of the savingram is in my view unambiguous. It reflects the fact that a grant had been made. The words "This allotment has been granted to this man on 8.1.1996" are not equivocal. Furthermore, it is clear that the Minister expected that registration would follow as a matter of course once the survey was completed as he stated "Once the works is ready, please draw up the map so it can be registered." There is no suggestion of further consideration being given to the application before a grant would be made. Furthermore, there was no competing application for the allotment which might require the Minister to consider the comparative merits of the applications before making his decision.

[34] I do not accept Mr. Kefu's submission that the Minister's words reflect a mistaken belief that it was the estate holder who made grants of land. It is hard to believe that the Minister of Lands, being the representative of the Crown on all matters affecting the land of the Kingdom (section 19 of the Land Act), would have such a belief. Whilst I accept that the savingram is technically incorrect in so far as its states that the grant was made on 8 January 1996, being the date that the estate holder gave his consent, it is likely in my view that the words used simply reflect the Minister's intention to give effect to the estate holder's wishes and grant the land to Mr. Folau. Certainly the present Minister of Land and the Officers of the Ministry, who had access to the Ministry's entire file, were of the common view that the land had been granted to Mr. Folau. The Minister's internal memorandum of 6 August 2014, the briefing paper to the Minister of 21 October 2014 and the savingram of 23 October 2014 all state that the allotment had been granted to Mr. Folau.

[35] It is also significant that Mr. Folau did take possession of the allotment in the sense that he took responsibility for it and ensured that it was maintained, first with the assistance of Vaioleti Ofa (but at Mr. Folau's expense) and then by granting Sione Taione the use of the land in exchange for its upkeep (Mesui Moala v Tu'i'afitu and Anor. [1956] Vol II Tonga LR 104, 105). There was certainly no evidence that at any time between 1997 and 2014 any consideration was given to granting the land to anyone else despite, it appears, there being significant unfulfilled demand for land in the estate of the Noble Ma'afu.

[36] In addition to all those matters there was also the important evidence given by Mr. Fataua Halatanu who in cross examination confirmed that had the survey of the land been carried out as the Minister directed the land would have been registered in the name of Mr. Folau. The relevant exchange was as follows:

"Niu:	Looking back at page 1 again of the Minister's production, page 1 you will see the receipt number is written above the note of Paula Moala. It says S/fee receipt number the same number on the receipt that you have seen and $40 and the same day.
Mr. Halatanu:	Yes.
Niu:	So after that was paid, 30 January 1997 the Minister then issued the instructions on page 4.
Mr. Halatanu:	Yes.
Niu:	That's a direction to survey and sub-divide the town allotment of this person and the final words there [are the] sentence "Once the work is ready please draw up the map so it can be registered."
Mr. Halatanu:	Yes
Niu:	And you must say that if the secretary makes sure that was carried out, that deed of grant would have been registered.
Mr. Halatanu:	Yes.

[37] As I have noted each case must be decided on its own facts. Looking at the totality of the evidence, particularly the union of the factors that I have set out above, the only proper inference to make is that the Minister did grant the allotment to Mr. Folau on 6 February 1997 and that Mr. Folau qualified as the holder of the allotment although registration was, through no fault of Mr. Folau, never completed.

Did Section 50 of the Land Act prohibit the grant of the allotment to Mr. Folau?

[38] I understood Mr. Kefu to accept that if the Court held that Mr. Folau had been granted the allotment in February 1997 the Minister had no power to cancel that grant in favour of Johnny Taione. I consider that concession was correctly made (Palu v Sete (Court of Appeal of Tonga, AC 18 of 2015, 8 April 2016). Strictly speaking then it is not necessary for me to now go on and consider this issue but in deference to the detailed and helpful submissions of Counsel I will express my view.

[39] The argument for the Minister was that Mr. Folau was never entitled to the grant of any land in Noble Ma'afu's hereditary estate because at all relevant times he was resident in New Zealand and not lawfully resident in the estate as required by section 50 of the Land Act. Section 50 provides:

Land for allotments shall be taken from the hereditary estates in accordance with the following rules —

(a) an applicant for an allotment lawfully resident in an hereditary estate shall have his allotments out of land available for allotments in that estate;

(b) where there is no land available in the estate in which the applicant is resident, then the allotment shall be taken out of some other estate held by the noble or matapule in one of whose estates the applicant is resident;

(c) if no land is available in any hereditary estate held by the noble or matapule in one of whose estates the applicant is resident then the allotment shall be taken out of the hereditary estate of any other noble who is willing to provide such allotment;

(d) if no land is available under rule (c) then the applicant may have his allotment from Crown Land;

(e) an applicant for an allotment to be granted out of Crown Land shall have his tax and town allotments from such particular portion of Crown Land as the Minister may decide:

Provided that an applicant already resident on Crown Land shall where possible be granted the allotments from the particular area of Crown Land in which the applicant is resident.

[40] Mr. Kefu submitted that section 50 of the Land Act was intended to regulate the granting of land from an hereditary estate and creates 'rules' that must be followed and not simply guidelines or policies and that there is no flexibility about the rules. He submitted that the rules reflect social and customary obligations that exist in Tonga based on community living where people are connected by blood or loyalty to the community or the neighborhood within which they live. He said that people of blood or neighborhood interact with each other based on concepts of respect (faka'apa'apa), humility (loto-to) dedication (mamahi'ime'a) and reciprocity (feveitokai'aki) and that these principles are best practiced when kinsfolk live together on land they are tied to for generations. He undertook a comprehensive analysis of the case law on section 50 from which he submitted that it has been accepted that a grant from an hereditary estate can be cancelled if the grantee was not lawfully resident in the hereditary estate because the Minister would be acting on wrong principles to grant an allotment from the estate to someone resident outside of that hereditary estate. He also submitted that non-compliance with section 50 would create disorder in the regime of the Land Act as it has been prescribed by Parliament and also tensions within the community when people not linked to the land move into the estate.

[41] Anticipating Mr. Folau's arguments in response, Mr. Kefu also submitted that Mr. Folau was not lawfully resident at Vaini within the estate of the Noble Ma'afu at any relevant time as he had lived in New Zealand for many years, he had never had any land registered in his name in Vaini, he had no residence in Vaini and "Loyalty and philanthropy for Vaini causes is not residency..".

[42] Mr. Niu provided a summary of relevant provisions in the Electoral Act, the Poll Tax Act (1924), the Act of Constitution and its amendments and the Land Act against which he argued section 50 must be interpreted. Section 50, he argues, does not and was not intended to restrict the grant of allotments out of an hereditary estate to only applicants who are lawfully resident in that estate. He submitted that by its terms the section does not apply to an applicant who is otherwise entitled to apply for a grant of land under the Land Act (i.e. a male Tongan subject by birth, over 16 years of age and not in possession of an allotment) but who resides overseas. He placed special emphasis on Kaufusi v Taunaholo [1981-1988] Tonga LR 70 which he said was authority that the Land Act does not require that a grantee of a tax allotment must be resident in the estate out of which the allotment is granted. It follows, he submitted, that section 50 did not prohibit the grant of the allotment from the estate of the Noble Ma'afu to Mr. Folau (if it was to be held that he was not resident in Vaini).

[43] Mr. Niu also argued that in any event Mr. Folau was and is still resident in Vaini. Although Mr. Folau lives day to day overseas Mr. Niu submits that it is quite possible, and indeed common, that Tongans are resident in the districts in which they last lived in Tonga, or with which they continued to maintain contact. He referred me to Moa v Fakaosita, Ha'alaufuli and the Minister of Lands [1991] Tonga LR 32, 34 where the Court of Appeal recognised the possibility of twin residences in Tonga and overseas and submitted that Mr. Folau was a permanent resident in Tonga and Vaini for all the reasons I have set out in paragraph 5, 6 and 7 of this ruling.

[44] Although both Counsel referred me to a number of authorities, and I have read and considered them all, the most relevant for present purposes in my view is Finau v Maamakalafi [2003] Tonga LR 284 (LC) and, on appeal, Maamakalafi and Anor. v Finau [2004] Tonga LR, 218 (CA)). The facts were that the plaintiff became the registered holder of an allotment in the village of Fotua on Foa Island, Ha'apai and sought to evict the defendant from the land. The defendant contended that the land should never have been registered to the plaintiff for reasons that included that the plaintiff had never been a resident in any estate of the estate holder and therefore his application failed to comply with section 50 of the Land Act.

The defendants also pleaded that the plaintiff had never been a resident in any estate of the estate holder, and, therefore, his application for the allotment failed to comply with rules (a) and (b) of Section 50 of the Land Act which sets out the rules to the allocation of allotments. Even accepting the submission, however, the evidence failed to satisfy me that the situation was not covered by rule (c) and, in any event, there is no evidence of any misinterpretation by the plaintiff or his mother in connection with the applications. The current Hon. Tu'ipelehake said in evidence that he was aware that the Plaintiff was not resident in Fotua at the time his application was presented and the evidence satisfied me that the estate holder knew about the plaintiff's situation in this regard but he was also aware of the plaintiff's historical links, through his mother, with the land in question.

Likewise there was no evidence that the Minister had been misled by the Plaintiff or his mother on any aspect of the plaintiff's application. On the contrary, the Minister was keenly aware of the background giving rise to the dispute and he had full knowledge of the defendants' involvement and their alleged claim through Vaima'ali to the land in question.

[46] On appeal, the Court of Appeal regarded section 50 as setting out rules to guide the Minister when allocating land but that it did not follow that a making of a grant in breach of section 50 necessarily resulted in the invalidity of the grant. The Court stated at paragraphs [15] to [20] as follows:

[15] But the Appellants made a further attack on the Respondent's registration and grant which, though not pleaded as a ground of invalidity, was dealt with and rejected by the trial judge. They urged that the Minister of Lands, in registering the grant of a town allotment to the Respondent, had acted contrary to s.50 of the Land Act. The contention was that the Respondent did not come within para. (a) or (b) of that section and that, as to para. (c), on which the trial judge relied, he made no application to test the availability of land falling within that paragraph. To assist understanding of the argument, we set out s.50, as follows....

[17] In the first place, the Minister of Lands was not joined as a party to the proceeding. If the registration and deed of grant were to be set aside on the ground that he acted unlawfully, that would require him to be joined and heard.

[18] Secondly, we agree with the learned Judge that an infringement of s.50 was not shown. In para. (c), the question is whether land "is available" in the relevant hereditary estate, not whether an application has been made for it. The Minister may have more than one way open to him to ascertain the answer to that question. In any case, unless there is proof to the contrary, a presumption of regularity would protect the registration effected and the deed of grant issued: Phipson on Evidence, 14 ed. (1990) 5-15; The Queen v Reynolds [1893] UKLawRpKQB 86; [1893] 2 QB 75. It is true the presumption is rebuttable, but it has not been rebutted.

[19] Thirdly, an infringement of a statutory provision regulating the performance of an official act does not necessarily spell invalidity. It depends on the true construction of the Act: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 388-391. In the course of the discussion in their joint majority judgment, McHugh, Gummow, Kirby and Hayne JJ referred to the distinction sometimes made between mandatory and directory provisions, and said (at 390-391):

A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. ... In determining the question of purpose, regard must be had to 'the language of the relevant provision and the scope and object of the whole statute.

[20] In applying this test to s.50, the Court must take account of two other sections in the immediate context of s.50 which expressly provide that disregard of their requirements has the consequence of nullifying any grant: sections 48 and 49. But s.50 contains no rule laying down any such consequence. In our opinion, s.50 is intended to set out rules to guide the Minister, but not to create a ground upon which a third party can attack the validity of a grant.

[47] The Court of Appeal has recently reaffirmed the correct approach for determining whether the infringement of a statutory provision will result in invalidity in Supervisor of Election and Ors. v Sione Tupouniua (Unreported, Court of Appeal, AC 32/2014, 24 November 2014, Scott, Salmon and Hansen JJ). The Court of Appeal approved Project Blue Sky Inc and Ors v Australian Broadcasting Authority [1998] HCA 28; 153 ALR 490 (also followed in Maamakalafi) where the High Court of Australia held that the correct approach is to ask whether it was the purpose of the legislation that an act done in breach of such a provision should be treated as invalid and that in determining the question of purpose, regard must be had to the language of the relevant provision and the scope and object of the whole statute.

[48] This is consistent also with Minister of Lands v Finau [2001] Tonga LR 221 (CA). In that case the central issue was what Parliament intended to be the consequence if the Minister granted land without consulting the estate holder, as is a requirement of the proviso to section 8 of the Land Act. It will be observed that sections 50 and 8 of the Land Act are closely related in that they share the same subject matter and section 8 provides:

Subject to the provisions of this Act relating to surrender, the grant, if the applicant be lawfully residing on an hereditary estate, shall be made from the lands in such hereditary estate; and if the applicant is lawfully residing upon Crown Land shall be made from Crown Land:

Provided always that land comprised in an hereditary estate shall not be granted as a tax or town allotment without prior consultation with the holder of the hereditary estate.

[49] In Finau the Court of Appeal held that it was not the intention of Parliament that a lack of prior consultation by the Minister would render void the grant of a tax allotment. Included amongst the Court's reasons were the following, at [32] and [33], which are relevant to the present case:

[32] Secondly, the broad policy of the statutory provisions is that it is the Minister who is given the sole statutory authority to issue a grant of an allotment. The requirement to consult is in the nature of a procedural step to enable the Minister to be informed of the attitude of the estate holder. That attitude may well be relevant to how the Minister exercises his discretion on an application for the issue of a grant. But there are no reasons for finding that the requirement to consult was intended to be a fetter on the Minister's power to make the grant.

[33] Thirdly, the phrase "prior consultation" in the provision to s8 is lacking in the degree of certainty to be expected if non-compliance were intended to invalidate a grant. Had that been the intention it could be expected, for example, that the provision would specify the nature of the consultation with a requirement that the record of the consultation and the consequences of it be in writing signed by the Minister. The absence of specific provisions of this kind supports the view that the proviso is a direction to the Minister on the steps he should take, but is not intended to invalidate the grant if he fails to do so."

[50] Mr. Kefu submitted that Maamakalafi was wrongly decided. He submitted it was contrary to previous decisions of the Land Court, Privy Council and Court of Appeal in which, he argued, it had been held that a grant from a hereditary estate could be cancelled if the grantee was not resident within that estate. In my view the submissions advanced for the Minister appeared to be, at least in part, based on a misunderstanding of what the Court of Appeal decided in Maamakalafi. It does not follow from Maamakalafi that a breach of section 50 will in all circumstances be without consequence. It has for instance been held that when there are competing applications for the same land it is wrong for the Minister to give preference to an application that was later in time and made by an applicant who was not resident in the hereditary estate and entitled to a grant from Crown Land ('Afu v Lebas [1923-1961] Vol II Tonga LR 16). Similarly, the Courts have not interfered in decisions not to grant land to an applicant in breach of section 50 (Maka v Minister of Lands and 'Asipa [1923-1961] Tonga LR 155 and Moa v Faka'osita, Ha'alaufuli & Minister of Lands [1991] Tonga LR 195 (CA)). That is all entirely proper and not at odds with the principles in Maamakalafi to which I have referred.

[51] The Privy Council decisions in Havea v Tu'i'afitu, Kava and Minister of Lands [1974-1980] Tonga LR 55 and Kaufusi v Taunaholo [1981-1988] Tonga LR 70, which were relied upon by Mr. Niu and Mr. Kefu, do not in my view advance the matter very far but they are not in conflict with Maamakalafi. It appears to me that the head notes in both cases go too far and do not reflect what was in fact decided. Havea was decided on the basis that that the appellant had failed to establish a breach of section 50 and in Kaufusi the Privy Council disposed of the appeal on the basis that the argument advanced had not been taken in the Court below. In other cases relied upon by Mr. Kefu, namely Moa v Faka'osita, Ha'alaufuli and Minister of Lands [1990] Tonga LR 32 and Koloi v 'Enele Ongoongotau & Minister of Lands (unreported, Land Court of Tonga, 22 June 2001, Ward CJ), the Land Court cancelled grants which it considered were made in breach of section 50 but those Courts did not address the relevant question of whether it was Parliament's intention that the breach necessarily invalidated the grant.

[52] Mr. Kefu argued that non compliance with section 50 of the Land Act would create disorder. I do not agree. Maamakalafi does not promote non-compliance with section 50 it simply decided that it was not the intention of Parliament that a grant made in breach of section 50 would "necessarily spell invalidity". In any event there are circumstances contemplated by the Land Act where grants will be made to a grantee who is not lawfully resident in the hereditary estate from which the land is taken. It was not suggested that this has caused disorder. Section 50(c) contemplates such circumstances. Similarly, section 8 states that "Subject to the provisions of the Act relating to surrender ..." the grant of land shall be from the hereditary estate in which the applicant is lawfully residing. Similarly the rules of succession contain no restriction on inheritance only by those lawfully resident within the hereditary estate. Also of course, a holder of an allotment is free to grant a license to anyone he chooses to live on and use his land regardless of whether that person was lawfully resident in that estate or had any prior connection with it. These are just examples.

[53] Mr. Kefu also argued that the Court's approach in Maamakalafi is inconsistent with the Court's insistence that land must be 'available' under section 50 before it is granted. All I need say about this is that the law in this regard is developing (To'a v Taumoepeau (unreported Land Court LA10/2012, 13 March 2015, Scott J) at [61]). In Finau v Minister of Lands [2012] Tonga LR 127, 133 at [16] the Court of Appeal noted:

In these reasons we have not sought to determine what 'available" means for the purposes of s 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 of whether land is "available" as a matter of fact for the purposes of s 50 having regards to the circumstances of any particular case, or whether "available" has a legal meaning to be determined by the 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.

[54] In my view the decision of the Court of Appeal in Maamakalafi is both correct and binding upon this Court. The result is that section 50 does not of itself render the grant to Mr. Folau invalid or void. I can see no reason on the facts of this case that would justify cancelling Mr. Folau's grant. There is no evidence of any misrepresentation by Mr. Folau in connection with his application. He was invited to apply for the land by the estate holder as a consequence of his close connection to the estate of Noble Ma'afu and the village of Vaini and the services that he had rendered; which clearly benefited the village of Vaini and pleased the estate holder. The estate holder was well aware that Mr. Folau was resident in New Zealand and the application was forwarded to Mr. Folau for his signature in New Zealand. The estate holder was also aware of Mr. Folau's prior links to the village of Vaini. In the absence of any evidence to the contrary the estate holder and the Minister must be taken to have considered that the application was properly and regularly made in terms of the Land Act.

[55] In the circumstances it is unnecessary for me to consider Mr. Niu's alternative submissions that section 50 does not apply to an applicant living outside of Tonga or that Mr. Folau had twin residences in New Zealand and Tonga.

[56] Had I not been of the view that the allotment had been granted to Mr. Folau I would have been required to decide whether the grant and registration of the allotment to Johnny Taione was made in breach of the rules of natural justice. The relevant principle was stated by the Court of Appeal in Hakeai v Minister of Lands [1996] Tonga LR 142, 143 as follows:

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.

[57] In addition the Minister must take such steps as are reasonable in the particular circumstances, to ascertain whether the land is in fact subject to some claim that might be an impediment to the grant or make it unavailable. The decision to make a particular grant cannot properly be made in the absence of some inquiry in any case where the Minister does not actually know whether the land is available or any competing claim has been appropriately resolved (Taufa v Viau [2006] Tonga LR 287 at [12]; Naulu v Tupou and ors (Court of Appeal, AC21/2015, 8 April 2016)).

[58] In this case there was no opportunity provided to Mr. Folau to be heard before the Minister decided to grant the land to Johnny Taione and indeed the Minister refused to meet with Mr. Folau and his lawyer to discuss the Minister's intention to cancel Mr. Folau's entitlement and grant the land to Johnny Taione. There was additional information that the Minister should but did not have when deciding to make the grant to Johnny Taione. For instance, there is nothing to suggest the Minister was aware that Mr. Folau had retired and was intended to move to Tonga to build and live on the land. Although the Minister was influenced by the fact that Johnny Taione had assisted to maintain the land it is not at all clear that he understood that this was under an arrangement between Sione Taione and Mr. Folau in return for the use of the land or that Sione Taione had sought to buy the land from Mr. Folau and had been refused. It is hard to see how, in full knowledge of all the facts, the Minister could ever have arrived at his conclusion that Mr. Folau did not value the grant and should therefore be deprived of it.

[59] The defendants submit that the Minister had no obligation to consult with Mr. Folau. I understand the Minister's argument is that section 50 prohibited the making of a grant to Mr. Folau so that it follows he could have no legitimate interest or expectation that the Minister was required to consider. As I have noted I do not accept that section 50 prohibited a grant to Mr. Folau and reject this argument. As for Johnny Taione and Noble Ma'afu the matters they raise, such as that Sione Taione had maintained the land and Mr. Folau lived in New Zealand for many years, might be thought relevant in the context of a consideration of the merits of competing applications for the same land (which was not the case here as the land had already been granted to Mr. Folau) but would not deprive Mr. Folau of his right to be heard.

[60] Had I been required to decide the matter I would have found that the grant and registration of the land to Johnny Taione was made in breach of the requirements of natural justice and should be set aside for that reason.

[61] The defendants have relied upon section 170 of the Land Act and argue that Mr. Folau should have made his claim within 10 years of the date that he says the Minister granted him the land; that is by 6 February 2007. As this claim was not filed until 2015 the defendants argue that it is time barred.

[62] I have recently considered section 170 in Fau v Fau (Unreported, Land Court, LA22 of 2014, 22 September 2015, Paulsen LCJ). That decision was upheld on appeal in Fau v Fau (Court of Appeal, AC 28/2015, 8 April 2016). In Fau I held that the plaintiff's right of action against the Minister's decision not to grant him land (to which he was undoubtedly entitled) accrued at the time the Minister's decision was conveyed to him and not when the land was granted to his brother. I noted at [26]:

Filipo's action is in reality a challenge to the Minister's decision not to grant him Tafasia. It just so happens that with the passage of time, and as the land has since been granted to Sililo, he must also challenge Sililo's registration. His right to bring his action first accrued at the point in time that he became aware that the Minister had decided that he would not accept his claim to Tafasia.

[63] In Fau I followed the decision of the Court of Appeal in Minister of Lands v Kulitapa [1997] Tonga LR 116. It is worthwhile repeating what I said about that case. In Kulitapa the Court of Appeal had to consider whether time began to run against a plaintiff in 1967 when he had made a proper application for the land in question or in 1987 when the Minister had expressly refused to grant him the land. The Court held that time began to run when the Minister had given his decision and this was conveyed to the applicant. The Court's reasoning was as follows:

The proceedings commenced by the respondent sought an order directing the appellant to register the town allotment in the respondent's name. The respondent could not bring such an action until the appellant had given his decision [on] the respondent's application. Had it been commenced before the decision, it would have been met with a plea that it was premature, as the application was still being considered. It was the making of the decision that gave the right to bring the action. That right accrued when the decision was made and conveyed to the respondent. The action was, in effect a challenge to that decision.

In the present case, Filipo acquired rights to claim interests in two parcels of land in 2001. To obtain those interests by grant required action by the Minister. Filipo became aware at that time that the Minister had made a decision not to grant him the tax allotment of Tafasia. It would have been open to Filipo to take legal action at this time to enforce his rights by proceedings against the Minister

[65] In this case time did not begin to run against Mr. Folau at the time he made his application for the land as the defendants contend. Such a result would be nonsensical and unjust as any claim Mr. Folau might have filed would have simply been answered with the response that his grant had been made and registration would be completed in time.

[66] The cases that come before this Court demonstrate that there have in the past and continue to be systemic delays in the preparation and registration of deeds of grant (as occurred in this case). It is not unheard of for them to be forgotten for long periods. It would be quite wrong for someone in the position of Mr. Folau to be deprived of his land as a result.

[67] Consistent with the decisions of the Court of Appeal in Fau and Kulitapa time began to run against Mr. Folau when he had notice of the fact that the Minister intended to grant his land to Johnny Taione. He did not have such notice until 2014. His claim is not time barred.

[68] Mr. Folau has established his entitlement to the land on the basis that it was granted to him in 1997. In those circumstances the Minister had no power to cancel the grant or to make a grant of the land and register it in the name of Johnny Taione. It follows that the only appropriate remedy is to cancel the registration of Johnny Taione and to order the registration of the allotment in the name of Mr. Folau.

[69] I declare that the grant and registration of the land in Deed of Grant Tohi 354 Folio 93 in the name of Johnny Taione to be unlawful and invalid and I order that it is to be cancelled forthwith. I also order that the said land (Lot 5 SP5879) is forthwith to be registered into the name of Mr. Folau.

[70] Mr. Folau is entitled to his costs against all defendants which are to be fixed by the Registrar if not agreed.