Fonua v Fonua [2018] TOLC 11; [2018] Tonga LR 208; LA 17 of 2017 (8 June 2018)

IN THE LAND COURT OF TONGA

NUKU’ALOFA REGISTRY

LA 17 of 2017

BETWEEN: HAVEA HIKULE’O FONUA

First Plaintiff

NAFETALAI FIFITA NIUA FONUA

Second Plaintiff

AND: FIFITA NIUA FONUA

First Defendant

‘ALIFELETI KI HA’ANGANA FONUA

Second Defendant

MINISTER OF LANDS

Third Party

Counsel: Mrs. F Vaihu for the plaintiffs

Mr. D Corbett for the defendants

Mr ‘A. Kefu SC for the third party

Date of Hearing: 24 May 2018

Date of Ruling: 8 June 2018

RULING

The dispute

[1] The first plaintiff (Havea) was granted a town allotment at Kolofo’ou known as Sila’a. He inherited Sila’a as heir following the death of his parents. For a time Havea was also registered as the holder of another town allotment that he had been granted earlier known as Feingaola. When this was discovered by the Ministry of Lands Havea was told that he had to surrender Feingaola. Feinagola was then granted to the second defendant (‘Alifeleti).

[2] This action arose because the first defendant (Fifita) and ‘Alifeleti, who are Havea’s brothers, were given permission to live temporarily on Sila’a by Havea but now refuse to leave. Havea and his son, the second plaintiff (Nafetalai), seek an order evicting Fifita and ‘Alifeleti from Sila’a. They also seek the cancellation of ‘Alifeleti’s registration of Feingaola in favour of Nafetalai who they say should have succeeded to Feingaola as Havea’s heir.

[3] Fifita and ‘Alifeleti argue that Havea’s could not lawfully hold two town allotments at one time and the grant to him of Sila’a was void under s. 48 of the Land Act. A further defence that Havea is estopped from ejecting Fifita and ‘Alifeleti from Sila’a was abandoned. I understand that Fifita and ‘Alifeleti also contend that the grant of Feingaola to ‘Alifeleti was validly made.

The facts

[4] Netane Fonua was married to Mele Fonua. They were the parents of Havea, Fifita and ‘Alifeleti. There is another son who lives in the United States.

[5] Havea was the eldest son of Netane and Mele and the heir.

[6] Havea’s eldest son and heir is Nafetalai. He is not yet 16 years old. Havea is acting as Nafetalai’s next friend in this action.

[7] Netane had a town allotment at Kolofo’ou known as Sila’a. Netane and Mele raised their family there. In 1988-1989 Havea built a house on Sila’a for his parents. It was paid for without any contribution from his parents or his siblings on the understanding that he would inherit Sila’a. A hurricane relief house was also built on the land by a sister.

[8] In 1995, Havea was granted and registered as the holder of a town allotment at Sopu known as Feingaola.

[9] Netane died on 1 August 1996. Mele was granted Sila’a as Netane’s widow. Mele died on 10 September 2010.

[10] When Mele died Havea (and also ‘Alifeleti on Havea’s behalf) claimed Sila’a as heir. Havea was granted Sila’a on 4 February 2011 and this was entered into the Register of Town Allotments on 15 February 2011. He has not yet been issued with a deed of grant.

[11] It is accepted by all parties that Havea validly claimed Sila’a within 12 months of Mele’s death as required by s. 87 of the Land Act.

[12] It appears that Havea was not required to complete an heir’s affidavit when claiming Sila’a and the Ministry was not then aware that he already held Feingaola. There was nothing sinister about this. Havea impressed me as an honest witness with an imperfect knowledge of Tongan land law. He understood that he was not allowed to hold two town allotments and that upon claiming Sila’a he would have to surrender Feingaola. However, he mistakenly thought that he was able to decide to whom Feingaola would be given. He offered Feingaola to his brother in the United States who did not want it.

[13] When the Ministry of Lands became aware that Havea held Feingaola he was told that he had to surrender it. Havea then decided to give Feingaola to ‘Alifeleti as he did not have any land of his own. It does not appear that anyone considered at the time that Havea’s grant of Sila’a was defective or that Nafetalai, not ‘Alifeleti, should inherit Feingaola.

[14] It is alleged in the defendants’ statement of defence, variously, that Havea forced ‘Alifeleti to apply for Feingaola, that Havea was trying to get away with holding two allotments and that Havea deceived ‘Alifeleti into taking Feingaola to save himself. ‘Alifeleti did not give evidence and there was nothing to support any of those allegation. I reject them and accept Havea’s evidence that he offered Feingaola to ‘Alifeleti because of his love for his brother.

[15] Havea wrote to the Minister on 4 January 2012. The letter records that he was writing following direction from the Minister’s office. He noted that Sila’a had been transferred to him, that he held Feingaola and requested that Feingaola be transferred to ‘Alifeleti because he did not have an allotment of his own. Havea also wrote that he had four children including a son, which perhaps should have alerted the Ministry to the fact that his request to transfer Feingaola to ‘Alifeleti might not be in accordance with the Land Act.

[16] The evidence of Mr. Vea, for the Minister, was that upon receipt of Havea’s letter the Ministry regarded Feingaola as having reverted to the Crown.

[17] ‘Alifeleti applied for Feingaola on 9 May 2012 and it was granted to him on 12 October 2012.

[18] In around 2012, Havea asked ‘Alifeleti to live on Sila’a and look after the property for him. Havea thought this would allow ‘Alifeleti to build his own house on Feingaola (which I understand he has not done). Around the same time, Fifita asked Havea if he and his family could live on Sila’a and Havea agreed. Although Fifita has a town allotment and a house at Houmakelikao he prefers to rent out that property and use the money to pay his loan.

[19] Havea said, and it was not disputed, that the arrangement he had with Fifita and ‘Alifeleti was that they would live on Sila’a free of charge on a temporary basis until he wanted it back.

[20] In 2016, Havea asked Fifita and ‘Alifeleti to vacate Sila’a. When they did not do so he had his lawyer, Mrs. Vaihu, write to them in January 2017 requiring them to leave by 1 March 2017. In a letter of 3 February 2017 Fifita requested a three month extension to vacate. Mrs. Vaihu wrote on 18 February 2017 refusing that request on Havea’s instructions.

[21] On 22 February 2017, Fifita’s lawyer, Mr. Corbett, wrote to Mrs. Vaihu. He asserted that Netane and Mele had wanted Sila’a to be subdivided for their four sons and sought the division of the land in accordance with the parents’ wishes. He also advised that Fifita would not vacate Sila’a without a Court order.

[22] I should note two points at this juncture. First, Sila’a cannot be subdivided into four lots as it is too small. It could only ever be subdivided into two lots. Secondly, my assessment is that Fifita’s primary motivation for wanting to remain living on Sila’a is financial. Whilst he lives there rent free he can use the income from his town allotment to pay his debts.

[23] Fifita’s evidence was that after he had had been given notice to vacate Sila’a he had looked for some defence so that he could remain there. The defence that he discovered was that Havea had held Feingaola and Sila’a at the same time.

The submissions for Fifita and ‘Alifeleti

[24] Mr. Corbett took me through provisions of the Land Act including section 48 and the succession provisions, ss. 84, 86, 87.

[25] Section 84 of the Land Act 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:

Provided always that where a son or a grandson becomes entitled to succeed to an allotment of his deceased father or grandfather and already possesses an allotment of the same kind it shall be lawful for such son or grandson to elect between the allotment already held by him and that of his deceased father or grandfather.

[26] Section 48 provides:

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.

[27] Mr. Corbett acknowledges that Havea was entitled to claim Sila’a as heir but submits that the claim was incomplete as it was not accompanied with an election by Havea under s. 84 choosing Sila’a in preference to Feingaola. That election had to be made, he contends, within 12 months of the death of the last holder. The argument continues that because Havea failed to make an election he held both Sila’a and Feingaola at the same time and s. 48 renders the grant of Sila’a void.

[28] In support of this submission, Mr Corbett referred me to s. 122 which provides that any person who becomes entitled to an allotment by devolution shall within one month of so being entitled present to the Minister the deed of grant formerly held by his predecessor in title. He noted that Havea had not complied with this provision.

[29] In addition, Mr. Corbett argued, again in reliance upon s. 122, that Havea has never been registered as the holder of Sila’a as the Minister of Lands has not signed an endorsement on the deed of grant setting out the transfer of title to him.

[30] I do not agree with Mr. Corbett’s analysis and fortunately the law does not require me to arrive at what I consider would be a grossly unfair outcome.

Sila’a

The election

[31] The primary issue concerns whether Havea made an election under s. 84.

[32] The starting point is that the Land Act does not provide any particular process that must be followed when an heir makes an election under s. 84, there is no prescribed form to be completed nor any time stipulated within which an election must be made.

[33] There have been two recent cases dealing with the issue of what amounts to an election for the purposes of s. 84. The first was a ruling of the Court of Appeal in Lisiate anor v Eli anors [2012] Tonga LR 30 (CA) which is, of course, binding on the Land Court.

[34] The relevant facts of Lisiate were that one Sione Siuaki Eli (Siuaki) was the holder of a tax allotment at Ha’ateiho. Upon the death of his mother a claim was made on his behalf (and it was found with his authority) to her tax allotment at Kauvai. There was no evidence that Siuaki made any specific election as to which tax allotment he would choose and he continued to occupy the Ha’ateiho allotment and even applied for and was granted a deed of grant to that land. Despite this the Court of Appeal held that Siuaki had made an election at the time of his mother’s death to take the Kauvai land and to surrender the Ha’ateiho allotment.

[35] The relevant part of the Court of Appeal’s ruling is at paragraph 33 which reads:

There is no doubt that [Siuaki] became the registered owner of the Kauvai land and it is a reasonable inference that the affidavit made by his brother which resulted in that registration was made with his approval or at his request. This conclusion is supported by the fact that Siuaki's widow believed that his eldest son was entitled to the Ha'ateiho allotment and wrote to the Minister after Siuaki's death asking for that land to be transferred to the third party. It is inconceivable that Siuaki was not aware that the Kauvai land had been granted to him. Given the well-known prohibition on the holding of more than one allotment of the same kind he must be taken to have surrendered the Ha'ateiho allotment. The fact that he continued to occupy the land is not inconsistent with this conclusion, nor is the obtaining of the Deed of Grant which may have been obtained so that the third party could have evidence of his entitlement.

[36] The second case is Lopeti v Lopeti (Unreported Land Court, 7 November 2017, LA 12 of 2016, Paulsen LCJ). The facts were that Tavite Lopeti had upon his father’s death claimed his father’s allotments by filing an heir’s affidavit. The affidavit was mislaid by the Ministry and not actioned. When this was eventually discovered, and because he received bad advice from the Ministry, Tavite decided to retain his own allotments understanding, incorrectly, that his father’s allotments could be registered in his son’s name. The question the Land Court had to decide was whether by filing his heir’s affidavit Tavite had exercised his election under s. 84 choosing his father’s allotments in preference to his own. It was held that he had. At paragraphs 22 and 23 of the ruling the Land Court stated:

[22] Tavite claimed ‘Alekisio's allotments within 12 months of 'Alekisio's death and the allotments therefore did not at any stage revert to the estate holder. Mr. Niu argues that when Tavite filed his heir's affidavit he elected 'Alekisio's allotments and relinquished his own allotments in favour of Yohanny. I agree with that analysis. In filing his heir's affidavit Tavite could only have been understood to have been making an election under section 84 of the Land Act. I have no doubt that when Tavite filed his heir's affidavit he did so intending to claim Felemei and Toafa for himself understanding also that his allotments would go to Yohanny. That is after all what happened when 'Alekisio had claimed Filisi's allotments and Tavite had inherited Pule from 'Alekisio. The Ministry must have understood Tavite was making his election as having filed his heir's affidavit for Felemei and Toafa he was told there was nothing more for him to do,

[23] Whilst the heir's affidavit does not state that Tavite was electing 'Alekisio's allotments in preference to his own the Land Act does not prescribe how an election is to be evidenced (Tonga and Ors v Minister of Lands & Ors [1924] Vol II Tonga LR 96). What is important is that the person legally entitled to make the election has communicated that election to the Minister in which case the Minister is bound to give effect to it. That occurred in this case and it appears that the Minister did not give effect to Tavite's election only because Tavite's heir's affidavit was mislaid.

[37] The ruling in Lopeti was appealed to the Court of Appeal where it was upheld but the appeal did not relate to the issue of election.

[38] The following principles are implicit in the rulings in Lisiate and Lopeti. First, in the absence of any prescribed process for the making of an election under s. 84 the question whether an election has been made is a question of fact. Secondly, the making of an election may be made expressly or may be implied from all of the circumstances of the case. Thirdly, to constitute an implied election there must be evidence that the person entitled to elect was aware of the nature of their right and having such knowledge intended to exercise their right of election. Fourthly, the election must be communicated to the Minister. Fifthly, the making of a claim to succeed to an allotment may without more be an effective communication of the election to the Minister.

[39] Applied to the facts of this case, Havea was aware that he was not entitled to hold two town allotments and had a choose to take Sila’a or retain Feingaola. It was his intention to choose Sila’a in preference for Feingaola. He intended and understood he was choosing Sila’a when he made his claim for it. When he filed his claim for Sila’a he was making a valid election for the purposes of s. 84. Having made his election he must be taken to have surrendered Feingaola.

[40] I can see no mischief that will result from this approach. There is no significant risk of heirs, intentionally or through ignorance of the law, retaining two allotments of the same kind. As the Court of Appeal noted in Lisiate, it is well understood that no one can hold two allotments of the same kind. The Ministry’s practise is for any person claiming land by succession to complete an heir’s affidavit. It is a simple matter for the Ministry to investigate whether such persons hold another allotment of the same kind and, if they do, to process its surrender.

[41] It follows that Havea validly elected to take Sila’a when he lodged his claim for it. As that is the only basis upon which his title is challenged it follows that Sila’a was validly granted to him.

Other matters

[42] The defendants’ challenge to Havea’s grant proceeds on what may well be an incorrect premise that s. 48 applies to land granted upon succession. Whilst I do not have to decide the point, there is much force in the submissions of Mrs. Vaihu and Mr. Kefu that s. 48 applies only to grants made under s. 43 and not grants that devolve by succession.

[43] A far as s. 122 of the Land Act is concerned, the fact that it was not complied with does not assist the defendants. Section 122 is a procedural requirement only and a failure to comply with it will not invalidate a grant (Lisiate at [38]). Furthermore, the fact that Havea has not been issued with a deed of grant is of no relevance. It has been held many times that registration is not the test of ownership of an allotment (Lisiate at [30]).

[44] I do not need to consider the submissions that were advanced by Mr. Kefu that Havea’s letter on 4 January 2012 was a valid election or by Mrs. Vaihu that Fifita and ‘Alifeleti have no standing to challenge Havea’s grant of Sila’a.

[45] I would also note for completeness that had I found that Havea had not exercised his election I do not see how that would advance matters for Fifita and ‘Alifeleti. Even if Havea’s present grant was set aside he undoubtedly made a valid claim for Sila’a and is entitled to it. Having now divested himself of Feingaola the Minister would be required to re-grant him the land.

The claim for possession

[46] Havea’s claim for possession of Sila’a is founded upon his rights as holder which, prima facie, entitle him to an order ejecting Fifita and ‘Alifeleti unless they successfully challenge his title or establish a right at law or equity to be in occupation. The only basis upon which they contend that Havea may not eject them is that his title is void under s. 48. As they have been unsuccessful in establishing that it follows that Havea is entitled to an order that they forthwith vacate his land.

Feingaola

[47] The next issue concerns the challenge to the grant of Feingaola to ‘Alifeleti. It is well established that the Court may cancel a registration which is made under a mistake of law (Lautaha v Minister of Lands [1995] Tonga LR 195).

[48] The evidence of Mr. Vea was that the Minister consented to ‘Alifeleti’s application for Feingaola in the belief that it had reverted to the Crown. This was clearly an error of law. The effect of s. 86 is that the allotment “shall be granted’ to trustees for the benefit of Nafetalai. The time within which such a claim could be made by or on behalf of Nafetalai has not expired under s. 87 and Feingaola did not revert to the Crown. Feingaola was not available for grant to ‘Alifeleti and his registration must be cancelled.

Result

[49] For the reasons set out above Havea and Nafetalai are successful. The counterclaim by Fifita and Alifeleti is dismissed. I make the following further orders.

[50] Fifita and ‘Alifeleti and members of their families and anyone else occupying Sila’a with their permission or consent are to immediately vacate Sila’a leaving on the land any possessions of Havea including the main dwellinghouse and all its fittings.

[51] The Minister is directed to cancel ‘Alifeleti’s deed of grant 344/60 (Lot 37, Plan 5260) in respect of Feingaola. It is for Nafetalai or some person on his behalf to now make application for Feingaola in accordance with s. 87 of the Land Act.

[52] Havea and Nafetalai are entitled to costs to be fixed by the Registrar if not agreed.

NUKU’ALOFA: 8 June 2018 PRESIDENT