Faka'osi v Hakeai [2018] TOLC 13; [2018] Tonga LR 254; LA 29 of 2017 (13 July 2018)

IN THE LAND COURT OF TONGA
NUKU’ALOFA REGISTRY

LA 29 of 2017

BETWEEN: TEMALETI FAKA’OSI

First Plaintiff

LEMONA TUKUITONGA

Second Plaintiff

AND : SIAOSI HAKEAI

First Defendant

HON. MINISTER OF LANDS

Second Defendant

BEFORE PRESIDENT PAULSEN

Counsel: Mr. S. Fonua for the plaintiffs
Mr. S. Tu’utafaiva for the first defendant
Mr. ‘A. Kefu SC for the second defendant

Date of Hearing: 2-3 July 2018
Date of Ruling: 13 July 2018

JUDGMENT

The positions of the parties

[1] This action is primarily concerned with a tax allotment known as Toto’ea. Viliami Hala Mosese (Vili) was the holder of Toto’ea, which was in the Crown estate, and a town allotment known as Fangavale. In 1991 Vili surrendered his allotments intending them for Sione Sika Manuao Faka’osi (Sika). Sika and the first defendant (Siaosi) both claimed Vili’s allotments. The Minister granted the allotments to Siaosi and then to Sika. Following a decision of the Court of Appeal (Hakeai v Minister of Lands & Ors [1996] Tonga LR 142) the respective claims were referred back to the Minister for reconsideration. The Minister made a decision that Toto’ea should be divided equally between Sika and Siaosi. Sika was to have the first choice of the land he wanted. Having not heard from Sika for some years, the Minister granted half of Toto’ea to Siaosi and a deed of grant was issued to him in 2014. Sika died in 2016.

[2] The first plaintiff (Temaleti) is Sika’s widow and the second plaintiff (Lemona) is his daughter. Temaleti argues that the Minister was not entitled to subdivide Toto’ea and was required to grant it to Sika in accordance with Vili’s wishes. She seeks the cancellation of Siaosi’s deed of grant and the posthumous registration of Toto’ea in Sika’s name and then to her as her widow’s estate.

[3] In the alternative, Temaleti argues that Sika was deprived of his right to choose what land he wanted. On this basis she seeks the cancellation of Siaosi’s deed of grant and the posthumous registration of that land in Sika’s name and then to her as her widow’s estate.

[4] Lemona argues that she was granted a lease of six acres of Toto’ea by Sika (albeit that the lease is unregistered) and that she should have been heard before the grant was made to Siaosi. In the event that Siaosi’s grant is upheld she seeks an order that it be subject to her lease.

[5] Both Siaosi and the Minister reject all of the matters advanced by Temaleti and Lemona. Siaosi also argues that Temaleti has no standing to bring this action as Sika was never the ‘lawful male holder’ of Toto’ea for the purposes of s. 80 of the Land Act and accordingly Temaleti cannot claim Toto’ea as his widow.

The facts

[6] I heard evidence concerning the development of Fangavale, the care provided by Sika and Temaleti to Vili over the years up to his death and the plans that Lemona and others had for the development of Toto’ea. I do not recount this evidence because, whilst helpful as background, it is not directly relevant to any issue that I must decide.

[7] The facts up to the time of the ruling by the Court of Appeal in Hakeai v Minister of Lands & Ors can be taken from that Court’s judgment as follows:

..the holder [Vili] who surrendered was unmarried and without children. Had he died at the date of the surrender, his heir would have been his first cousin Hala Hakeai, the father of [Siaosi], but for a circumstance that would have raised a complete bar against the cousin inheriting. That was the fact that Hala already held town and tax allotments...

Consequently, it is quite clear that in this case the surrender of the allotments could not lead to Hala taking them. In the particular circumstances, it is conceded, the result is that the line of inheritance came to an end upon the surrender, and the allotments reverted to the Crown.

The land, having reverted to the Crown, was available to be granted a fresh. That was the purpose of the surrender, for the holder wished to enable [Sika] to obtain a grant. But before any steps had been taken to that end, [Siaosi], or his father on his behalf, lodged an informal application, upon which a purported registration of a grant was made in favour of [Siaosi]. However, there was no actual deed of grant. It was conceded that the informal application did not comply with the requirements for a valid application.

Upon the miscarriage of the intention of the surrender becoming known, and within some 15 days, the Minister of Lands cancelled the registration in favour of [Siaosi], and registered [Sika] as the holder of the allotments. Neither when [Siaosi] was registered was notice first given to [Sika], nor when the cancellation was effected was notice first given to [Siaosi]. Nor was [Siaosi] given any opportunity to make a submission before [Sika] in his turn became registered as the holder of the allotments.

[8] The Court of Appeal held that the Minister had not observed the requirements of natural justice in failing to give Sika an opportunity to be heard when granting the land to Siaosi and made the same mistake again when cancelling Siaosi’s registration without ensuring that both sides were first heard and given an opportunity to put their point of view before a decision was made. Sika’s registrations were cancelled and the competing applications of Sika and Siaosi were referred back to the Minister:

...to enable the appropriate decision to be made after a consideration of the contentions of both sides. It should be made clear that this order does not imply that one side or the other should receive a grant, but only that the failure of the Minister to allow natural justice to either party vitiated his decisions. They must be considered again.

[9] The matter was not followed up promptly by the Minister nor were Sika’s registrations noted as cancelled in the Ministry’s records. The Minister wrote to Siaosi and Sika on 13 November 2000 asking them to make contact with him so that a decision could be made in relation to the allotments. There is a note on the Ministry’s file that there had been no response from Sika to that letter and that Sika was living in New Zealand. There was subsequently a meeting of the parties with the Minister in 2002 when the Minister unsuccessfully sought to broker a compromise. There was also correspondence sent to the Minister by or on behalf of both Siaosi and Sika during 2002 and 2003. No decision was made by the Minister.

[10] On 8 March 2007, a meeting was arranged for the parties with the Minister but it was postponed because Sika was not present. A meeting was held on 13 April 2007 at which Siaosi and Sika, and others including Temaleti, were present and Sika and Siaosi were given an opportunity to be heard in relation to their respective claims. The Minister noted that it was clear to him that the parties would not agree and that the decision was a difficult one. He said he would give a decision in writing the next week as he was aware that Sika and Temaleti might not be in Tonga when the decision was made. They were then living in New Zealand although their home at Fangavale was occupied by them from time to time and by relatives.

[11] On 13 July 2007, the Minster issued his written decision. He decided that Fangavale would be granted to Sika. As far as Toto’ea was concerned, the Minister decided that it would be halved and that Sika and Siaosi would each get 4a 0r 21.15p of land. The Minister also decided that Sika ‘will first elect which part or side he will get...’. There is an issue, to which I will return, whether the Minister’s letter was received by Sika.

[12] Temaleti and Lemona said that at various times they went to the Ministry of Lands to check on the registration of Toto’ea and were told that it was registered in Sika’s name.

[13] In late 2009, Lemona applied for a lease from Sika of six acres of Toto’ea intending that she, her husband and brother would use it for a poultry farm. The lease application was not produced but Cabinet gave its approval on 13 October 2010 to a 20 year lease from Sika to Lemona for farming purposes. This was clearly an error as Sika was not the registered holder of Toto’ea. The lease was never registered and the land has not been used for a poultry farm.

[14] In a letter of 15 May 2009, Siaosi wrote to the Minister stating that too much time had passed since Sika was asked to choose his land. Siaosi asked the Minister to allow him to choose the land he wanted. Siaosi submitted his application for the land on 12 January 2010 and the Minister granted Siaosi’s application on 1 February 2010. In a Savingram of that date the Minister ordered the survey and subdivision of Toto’ea.

[15] It appears that Sika learned of Siaosi’s grant when Siaosi ordered workers from Toto’ea. Sika and Temaleti then wrote to the Minister on 20 March 2010 expressing their dissatisfaction, asking for a meeting with the Minister and requesting that he stop any further work so that they could take the matter to Court.

[16] Sika and Temaleti met with the Minister on 26 March 2010 and following the meeting Sika wrote to the Minister by letter dated 9 April 2010 setting out his case based on legal advice that he had received. Sika denied receiving the Minister’s letter of 13 July 2007 until he was given it at the meeting of 26 March 2010. He said that he did not accept the Minister’s decision of 13 July 2007 and that Siaosi had no entitlement to Toto’ea. He made it clear that under no circumstances would he accept the Minister’s decision, which he described as unlawful. He required the Minster to ‘return my land because it was registered to me lawfully’ (despite the Court of Appeal’s ruling to the contrary).

[17] Sika and Temaleti had another meeting with the Minister on or around 21 April 2010. Temaleti said that during this meeting the Minister apologised and said that he had not been fully briefed by his staff. She said the Minister asked Mr. Uele if he could cancel the letter the Minister had written to halve the land and told Sika and Temaleti that the land would not be subdivided and that ‘you have your land’.

[18] I do not accept Temaleti’s evidence about what the Minister said at the meeting of 21 April 2010. Temaleti said nothing about this in her written brief of evidence and it was prepared with the assistance of very experienced Counsel. In addition, the Minister was well aware of the facts of the case before he made his decision to make the grant to Siaosi. Mr. Uele denied any knowledge of a meeting where the Minister directed that his decision was to be cancelled and I prefer Mr. Uele’s evidence. Furthermore, the Minister did not in fact take any steps to cancel Siaosi’s grant and went ahead and registered it.

[19] On 2 April 2014, Siaosi was issued with his deed of grant (406/74). According to Temaleti, Sika was aware of this as Siaosi again took steps to remove workers from the land.

[20] Sika died on 8 January 2016. These proceedings were issued only after his death.

Discussion

The threshold question

[21] I will deal first with what Mr. Tu’utafaiva described as the ‘threshold question’ concerning the standing of Temaleti to claim Toto’ea as Sika’s widow. Temaleti’s claim must be founded upon s. 80 of the Land Act which provides:

Widow entitled to life estate

On the death of the lawful male holder of any tax or town allotment his widow shall be entitled to a life estate in such allotment which estate shall terminate on her remarriage or upon proof in legal proceedings (as provided by section 81) of her having committed fornication or adultery:

Provided always that the failure of the deceased lawful male holder of any tax or town allotment to register the same under the provision of Division II of Part VIII of this Act shall not of itself be a bar to the grant to his widow of a life estate under this section, and that provided the Minister of Lands is satisfied upon enquiry that the deceased person was the lawful holder of the said allotment it shall be lawful for him to effect posthumous registration at the request of the widow.

[22] Mr. Tu’utafaiva submits that there is no definition of ‘lawful male holder’ or ‘male holder’ in the Land Act. He argues that to be a lawful male holder for the purposes of s. 80 the allotment in question must have been granted by the Minister to the deceased husband at the date of his death. This interpretation was consistent, he contends, with the purpose of s. 80 to protect a widow’s life interest in land if her deceased husband has failed to register his allotment despite being the lawful holder of it.

[23] The terms ‘landholder’ or ‘holder’ are defined in s. 2 of the Land Act, as follows:

“landholder” or “holder” means —

(a) as regards Crown Land the Minister of Lands;

(b) any Tongan subject holding an hereditary estate (tofia), a tax allotment (api tukuhau) or town allotment (api kolo);

(c) any Tongan subject claiming to be interested in land which he is legally capable to hold;

(d) any trustee duly appointed by the King, the Minister, or the Court on behalf of any person entitled to succeed to any land on reaching the lawful age of succession in respect of such land;

(e) any person appointed as or acting as trustee or representative for any person beneficially entitled to any land or interest in land;

(f) any person who claims to be entitled to any land or interest in land whether in actual possession or occupation or otherwise.

[24] I begin from the position that it is arguable that paragraphs (a), (b), (c) and (f) could have relevance in this case.

[25] The definitions of ‘landholder’ and ‘holder’ apply ‘unless the context otherwise requires’ (s.2 of Land Act) so that in Taufa v Tahaafe [2015] Tonga LR 104 the Court of Appeal held that in the context of the whole Act paragraph (f) of the definition of landholder was not apt to describe a holder under s. 82 of the Act.

[26] Section 4 of the Land Act provides that the interest of the holder of a hereditary estate, tax allotment or town allotment is ‘a life interest subject to the prescribed conditions’. Section 5 provides that holdings are hereditary according to the prescribed conditions of succession.

[27] It is apparent from the opening words of s. 80 (‘On the death...’) that whether a deceased was the ‘lawful male holder’ of land is to be determined at the date of his death and not at any other time.

[28] It is also the case that for the purposes of the succession provisions contained in Part IV Division VII of the Land Act there can be only one lawful holder at any one time (Mokofisi v Minster of Lands [2014] Tonga LR 267.) Mokofisi concerned the proviso to s. 82 of the Land Act, which for all material purposes is in the same terms as the proviso to s. 80. The proviso was held to be intended to protect an heir of a deceased male holder if the latter failed to register his allotment under Division II of Part VIII of the Act. The proviso to s. 80 protects a widow in the same circumstances.

[29] Relevantly for present purposes, the Court of Appeal held in Mokofisi, at paragraphs [22] and [24]:

[22] We have not overlooked the definition of holder in s.2 which applies unless the context otherwise requires. The definition includes in paragraph (c) "any Tongan subject claiming to be interested in land which he is legally capable to hold."

....

[24] We are inclined to the view that the context requires there to be only one "holder" as defined at any given time. On that basis the grandfather ceased to be "the holder" of these allotments at the latest on 1 August 1929, when 'Olive Tonga became the registered holder. Accordingly, when the grandfather died he was not "the deceased lawful male holder" of the allotments for the purposes of the proviso, and the appellant's claim fails for that reason also.

[30] Given the similar wordings of ss. 80 and 82, which appear in the same Part and Division of the Act concerned with the devolution of allotments, it must be the case that there can be only one holder (and one lawful holder) under s. 80. My conclusion is supported by the use of the definite article ‘the’ (not the indefinite articles ‘a’ or ‘an’) when referring to the lawful male holder throughout s. 80.

[31] Section 80 was discussed by the Court of Appeal in Mangisi v Koloamatangi (Unreported, Court of Appeal, 23 July 1999, Burchett, Tompkins and Beaumont JJ) where it was held:

That the rights the widow obtained under s.80 of the Land Act could not be greater than those of her deceased husband, through whom she obtained them. As Martin CJ said in Matavalea v Uata....a very similar case:

“[S]he took only what her late husband held at the date of his death; subject to any matters which affected the land then.

[32] Sika was never the lawful male holder of Toto’ea. Assuming for present purposes, as Temaleti now contends, that the Minister’s decision of 13 July 2007 and Siaosi’s grant were invalid (which I do not accept for the reasons that follow), Sika and Siaosi were both in exactly the same position as regards Toto’ea. They were both claiming the land but neither could be said to have a greater entitlement to it as a matter of law. The position would be that Toto’ea had reverted to Crown following Vili’s surrender and pending his further decision the Minister of Lands was the holder under paragraph (a) of the definition of landholder in s. 2 of the Act.

[33] Whilst Sika and Siaosi had made competing applications for Toto’ea that did not make them landholders or holders notwithstanding subparagraphs (c) and (f) of the definition in s. 2 of the Land Act. First, as I have noted above for the purposes of ss. 80 and 82 there can only be one holder (Mokofisi). Secondly, and in accordance with Taufa v Tahaafe those paragraphs are general ones not apt to describe a holder under ss. 80 and 82.

[34] As Sika was not at his death the lawful holder of Toto’ea, Temaleti is not entitled to request the Minister to effect posthumous registration or to claim a life estate in the allotment under s. 80 as widow. On this basis her claim must fail.

[35] It should not be thought that I accept Mr. Tu’utafaiva’s submission that to be a lawful male holder for the purposes of s. 80 the allotment in question must have been granted by the Minister to the deceased husband at the date of his death. It appears to me that a deceased husband who has claimed land as heir under s. 82 in a timely manner is also a lawful male holder despite not being in receipt of a grant by the Minister. This does not have any bearing on the result of this case.

The surrender argument

[36] Despite my finding above I will deal with the other arguments that have been advanced by Temaleti. The first relates to section 54 of the Land Act.

[37] When Vili surrendered his allotments s. 54 of the Land Act read as follows:

54 Surrender of allotments

Whenever the holder of a tax or town allotment desires to surrender such allotment or any part thereof, it shall be lawful for such holder with the consent of the Cabinet to surrender the said allotment or any part thereof as aforesaid, and any allotment or any part thereof so surrendered shall, subject to the provisions of this Act, immediately devolve upon the person who would be the heir of the holder if such holder had died; and if there be no person on whom the allotment or any part thereof can so devolve the allotment or any part thereof if situate on Crown Land shall revert to the Crown and if situate on an hereditary estate shall revert to the holder thereof.

[38] Although s. 54 was amended in 1991 to add subparagraphs (2) and (3) these additions do not affect my conclusions.

[39] Temaleti’s principal argument is that the Minister was obligated to give effect to Vili’s wishes and grant Toto’ea to Sika. Mr. Fonua submits that the Minister was bound to give effect to the ‘desire’ of Viliami to grant his allotments to Sika and as such could not subdivide Toto’ea or grant any portion of it to Siaosi. I do not accept this submission. It is both contrary to authority and based on an erroneous argument that a landholder’s surrender under s. 54 imposes upon the Minister the obligations of a trustee to give effect to the landholder’s wishes.

[40] The wishes of a surrendering landholder are not binding on the Minister. In a case such as this, where Vili had no heir, upon surrender Toto’ea reverted to the Crown and was available to be granted by the Minister to any eligible Tongan male applying for it in accordance with ss. 19(2) and 43 of the Land Act. The decision as to whom the allotment would be granted is a matter for the Minister in the exercise of his discretion.

[41] In Nuku v Luani & Ors (Court of Appeal, AC 6 & 7, 6 September 2017, Paulsen P, Handley and Blanchard JJ) the Court of Appeal, approving Hampton CJ in Sakalia v Vailea & Ors [1995] Tonga LR 130, 135, said at [11]:

In any event Mr. Kava had no right either under ss. 72 and 73 or under s. 54 to bind the Minister to grant the surrendered Lot to the person he nominated. Hampton CJ said in Sakalia v Vailea & ors [1995] Tonga LR 130. 135:

(d) The person surrendering...is not given power to impose conditions on the surrender e.g. who should succeed him to the land; succession to the land is determined by the law.

(e) The surrender of the land was complete when cabinet gave its consent and the [former holder] has no more interest in the lands’

[42] The Land Court’s decision in Sakalia was confirmed on appeal and followed in Kaufusi v Kaufusi [1998] Tonga LR 173 where the Court of Appeal said:

As was pointed out in Vailea v Sakalia ‘there is not provision in the Land Act for a person surrendering land to impose conditions to that surrender’.

[43] Mr. Fonua submitted that the use of the word ‘desire’ in s. 54 ‘clearly indicates’ the intention of Parliament to widen the grounds or conditions upon which the allotment holder can surrender his allotment. This submission is unsupported by any authority and overlooks that the words of the section are ‘desires to surrender’. Those words say nothing at all about the landholder’s wishes other than to surrender the land. Once the landholder surrenders his land he has no further interest in it.

The subdivision argument

[44] The second ground advanced by Temaleti relies upon s. 53(1) of the Land Act which provides:

Whenever the Cabinet is satisfied that it is possible so to do the Minister shall arrange for the subdivision of land into rectangular tax allotments and if by reason of such subdivision the holder of a tax allotment is deprived of the whole or part of his allotment he shall in addition to receiving other land in lieu therefore be entitled to the produce of the coconut trees growing on the land of which he has been deprived for period not exceeding 6 years from the date on which he was deprived of the whole or part of his tax allotment as aforesaid and the period for which he shall be so entitled shall be determined by the Minister.

[45] Mr. Fonua submitted that under s. 53 the power to subdivide tax allotments is vested only in Cabinet and the Minister’s decision to subdivide Toto’ea was invalid and Toto’ea should be registered in its entirety in Temaleti as widow.

[46] Section 53 is concerned with the creation of tax allotments by subdivision from hereditary or the Crown estates. Toto’ea was first registered on 19 October 1920. There was no evidence of non-compliance with any equivalent provision to s. 53 when it was created as a tax allotment. There is also no evidence of the alleged non-compliance with s. 53 when it was subdivided on the direction of the Minister in 2010 (assuming s. 53 applies). That is enough to dispose of this ground but there is another reason why it must fail also.

[47] It does not follow that if the subdivision of Toto’ea was undertaken in breach of s. 53 that the grant to Siaosi should be set aside, much less that the Minister should now be ordered to effect registration of Toto’ea in Temaleti. The infringement of a statutory provision regulating the performance of an official act does not necessarily spell invalidity. Whether that is so or not will depend upon the true construction of the Act.

[48] The test to be applied in such a case is whether it was the purpose of the legislation that an act done in breach of the provision should be invalid. In determining this the Court must have regard to the language of the relevant provision and the scope and object of the whole statute. (Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 388-391; Maamakalafi & Anor v Finau [2004] Tonga LR 218 (CA), Supervisor of Election Ors v Sione Tupounuia (Unreported Court of Appeal AC 32/2014, 24 November 2014, Scott P, Salmon and Hansen JJ), Finau v Minster of Lands [2012] Tonga LR 127 (CA) and Folau v Taione Ors [2016] Tonga LR 189).

[49] In Minister of Land v Finau it was held that it was not the intention of the Legislature that if the Minister granted land without consulting the estate holder, as is a requirement of the proviso to s. 8 of the Land Act, the grant was invalid.

[50] In Folau v Taione it was held that the making of a grant in breach of s. 50 of the Land Act did not result in the invalidity of the grant.

[51] Mr. Fonua made no submissions as to why a grant of a tax allotment that just happened to have been created in breach of s. 53 should result in the invalidity of the grant. I can see nothing to support such a contention and there are clear indications to the contrary. First, s. 53 is not concerned with the validity of grants of tax allotments. Secondly, the policy of the Land Act is that it is for the Minister to make grants of land and in the absence of a clear indication to the contrary in the Act it would cause great mischief if such grants could be set aside due to some technical breach of a procedural step by the Minister. Thirdly, the language of s. 53, and in particular the words “Whenever the Cabinet is satisfied that it is possible so to do ...’ are ‘lacking in the degree of certainty to be expected if non-compliance were intended to invalidate a grant’ (Finau at [33]).

The alleged breach of natural justice

[52] This ground rests upon the allegation that Sika never received the Minister’s letter of 13 July 2007 and was deprived of his opportunity to make a choice as to the land he wanted. As it is Temaleti that is challenging Siaosi’s grant she has the burden to prove to the civil standard that the letter of 13 July 2007 was not received by Sika.

[53] There is support for the contention that Sika did not receive the letter of 13 July 2007. Temaleti says Sika did not get the letter. There is also the absence of any objection from Sika once the decision was issued. Then there is the content of Sika’s letter to the Minister of 9 April 2010 in which he says he only received the Minister’s decision on 26 March 2010.

[54] Against that however, as I have noted earlier I have not been able to accept that Temaleti’s evidence was correct on all matters. Then there is that at the meeting of 13 April 2007 the Minister told Sika and Temaleti that he would issue a written decision in a week. Mr. Uele says that the letter was sent for delivery to Fangavale (albeit the delivery book cannot be found). Both Temaleti and Lemona accepted that there were relatives living there at the time. Whilst it is unfortunate that a record confirming delivery cannot be found it is important to note that the Minister issued his decision in writing because Sika and Temaleti might have returned to New Zealand and he was concerned that they get his decision. One can expect he took reasonable efforts to ensure that they did. It is also the case that there was never any enquiry of the Minister by Sika requesting a decision. Having regard to the background, one would expect such an enquiry if no decision had been received.

[55] The absence of any complaint from Sika following the decision must also be weighed against the fact that even though he undoubtedly learned of the decision in March 2010 he took no court action to set it aside before his death in 2016.

[56] Important also is the matter of Lemona’s lease. If Sika did not receive the Minister’s decision there would have been no reason for him to think that he had any legal basis to grant Lemona her lease. That suggests to me that he was aware of the Minister’s decision by at least 2009, which was before the grant was made to Siaosi.

[57] When I weigh all the evidence in the balance Temaleti has not satisfied me to the required standard that Sika did not receive the Minister’s decision of 13 July 2007 and this ground must fail also.

[58] If I had found that Sika did not receive the Minister’s letter I would not have referred the matter back to the Minister for reconsideration in any event for two reasons. First, I am satisfied that Sika would not have made a choice as to which land he wanted as he would accept nothing other than all of Toto’ea. Sika’s position in this regard was clearly set out in his correspondence to the Minister both before and after the Minister’s decision. Secondly, it would be futile to refer the matter back to the Minister as it is not now possible for Sika to make his choice because he has died. The choice was his alone to make.

Lemona’s lease

[59] Lemona’s claim that the Minister failed to ‘allow natural justice’ as he did not give her the opportunity to be heard before making a decision to divide Toto’ea cannot be correct. The Minister made his decision in 2007 and Lemona did not apply for her lease until 2009.

[60] Lemona faces other insurmountable hurdles. The lease she relies upon was granted by Sika but Sika was never the registered holder of Toto’ea and could not grant a valid lease (s. 56 of the Land Act).

[61] Furthermore, a lease that is not registered is not effectual to pass or affect any interest in land and cannot bind Siaosi. There is nothing to suggest Siaosi did anything that would estop him from refusing to acknowledge Lemona’s lease.

[62] These points were recently made in Lopeti v Lopeti & Ors (Unreported Court of Appeal, 26 March 2018, AC 15 of 2017, Handley, Blanchard and Hansen JJ) at [8] and [9] where the Court of Appeal said:

[7]....But, crucially, the right to grant a lease of a town or tax allotment is restricted, under s.56, to a registered holder. (Although s.56 provides for a grant by the registered holder, the lease is actually signed as lessor by the Minister of Lands pursuant to cl.110 of the Constitution of Tonga and s.19(3) of the Land Act as required by the prescribed Form of Lease No. 3 in Schedule IX of the Act, this being done with the agreement of the holder of the allotment in his form of application for lease (Form No. 1))

[8] Therefore someone who has not become registered as a holder cannot grant a lease in terms of the Act. Furthermore, s.126 provides that no lease until registered as prescribed in the Act is effectual to pass or affect any interest in land.

[9] These provisions leave no room for the operation against a successor in title to the allotment of any equivalent of the equitable lease familiar in other jurisdictions, even where the successor has notice that an agreement for a lease purports to have been made by the previous holder...

Result

[63] The plaintiffs’ claims are dismissed.

[64] Siaosi is entitled to costs to be fixed by the Registrar if not agreed.

[65] Finally I note that in the amended statement of claim Temaleti has sought an order that Fangavale be posthumously registered in Sika’s name and then transferred to her as her widow’s estate. I heard nothing about this during the hearing but if there are matters between Temaleti and the Minister that have not been resolved by this judgment or by agreement I reserve leave for either party to apply for further orders.

O. G. Paulsen

NUKU’ALOFA: 13 July 2018 P R E S I D E N T