Pekipaki v Fifita [2018] TOLC 5; [2018] Tonga LR 54; LA 4 of 2017 (5 February 2018)

IN THE LAND COURT OF TONGA

NUKU’ALOFA REGISTRY

LA 4 of 2017

BETWEEN: SIFA HOLAKINUALEI PEKIPAKI

Plaintiff

AND : LANUOLA FIFITA

First Defendant

A.P.T. FAST FOOD

Second Defendant

HON. MINISTER OF LANDS

Third Party

BEFORE THE PRESIDENT PAULSEN

Counsel: Mr. D. Corbett for the plaintiff
Mr. S. Tu’utafaiva for the first and second defendants
Mr. ‘A. Kefu SC for the third party

Date of Hearing: 8 – 10 January 2018
Date of Ruling: 5 February 2018

RULING

The claim and counterclaim

[1] The plaintiff (Sifa) was the holder of a town allotment at Fanga. Sifa has lived most of his life in the United States and in 1982 became a citizen of that country. He thereby lost his right to hold his allotment. The first defendant (Lanuola) is Sifa’s niece and she has lived on the allotment for 40 years and has developed it. She rents out a building to the second defendant (APT) as a restaurant. Sifa has now been re-admitted as a Tongan national. Both Sifa and Lanuola’s grandson applied for the allotment. The Minister granted Sifa the allotment. Sifa commenced this action to evict Lanuloa and APT. Lanuloa counterclaims for the cancellation of Sifa’s registration on the grounds that the Minister failed to make proper inquiries, observe natural justice and avoid obvious mistakes when re-granting the allotment to Sifa.

The pleadings

[2] Sifa’s statement of claim included a number of causes of action which were abandoned. Sifa’s claim now solely rests on the basis that as the registered holder of the allotment he is entitled to possession of it from Lanuola and APT.

[3] I should mention at this juncture that APT is incorrectly described and is in fact an incorporated company called Asia Pacific Trading Company Limited. Counsel should take more care in naming parties.

The witnesses

[4] I heard evidence from Sifa, Sifa’s brother-in-law Makihele ‘Unga (Makihele), Lanuola and Fataua Halatanu, a Senior Lands Officer. APT did not call any evidence.

[5] On some matters Sifa and Lanuloa gave conflicting evidence. I found Sifa to be an unreliable witness. He had forgotten important matters or was mistaken as to when they occurred. With the passage of time he denied knowledge that he must previously have had, such as that he was aware by at least 2008 that he had lost his allotment. Lanuola had a better and detailed recall of events and I found her to be a direct, plausible and, in the main, reliable witness. In areas of conflict I prefer Lanuola’s evidence.

The facts

[6] Sifa was born in 1942 and grew up in Tonga. He was promised an allotment of Government Land at Fanga. The allotment was swampy but in around 1969 Sifa built a house on it. At that time the Minister would not grant allotments until they had been built on. In 1971 Sifa was registered as the holder of his town allotment. It was 1R 20.3P being Lot 23 Plan 724 and Deed of Grant 188/55.

[7] By this time Sifa had already left Tonga for the United States. Sifa has lived in the United States since 1970. He married there and has two daughters and two sons.

[8] In the years between 1970 and 2005 Sifa had little, if anything, to do with his allotment. He said he visited Tonga in 1972 and 1973 and again in 1985 but there was no evidence that he did anything with his allotment.

[9] In 1978 Lanuola began living on the allotment. Sifa said that Lanuloa moved onto the allotment because he gave his sister (Lanuola’s mother), Pulonga Tangi, permission to live there on the condition that upon her death all of her children would vacate. Lanuola said that she was asked by her aunt and Sifa’s sister, ‘Amelia Tongilava, to look after the allotment. I prefer Lanuola’s evidence as Pulonga Tangi never lived on the allotment.

[10] Lanuola has been living on the allotment with members of her family for an uninterrupted period of 40 years. When Lanuola first moved to the allotment she took with her a child of her first marriage. Later she remarried and lived there with her second husband. They had at least one child. Lanuola remained on the allotment after her second husband died. She now has her grandson and his mother living with her

[11] On 27 May 1982 Sifa became a citizen of the United States of America. Under the Nationality Act he thereby lost his right to hold his allotment. He was not aware of that at the time.

[12] Sifa said under cross examination that he first asked Lanuola to vacate the allotment in 1985. Lanuola said that she was first told to vacate the allotment in 2005 and was given time to do so. I prefer Lanuola’s evidence. Sifa was clearly confused about dates substituting 1985 and 2005 on a number of occasions. Furthermore, he made no mention of telling Lanuola to vacate in 1985 in his brief of evidence or his evidence in chief and only mentioned it in cross-examination. Sifa returned to Tonga in 2006, 2007 and 2008 and also told Lanuola that he wanted her to move from the allotment on those visits.

[13] Lanuola has developed the allotment in three ways. First, she filled part of the allotment with rocks so that it could be built on. I accept that Sifa had also filled some part of the allotment when he built his house. Since Lanuola has been on the allotment a number of buildings (a house, restaurant and furniture shop (now removed)) have been built and Lanuola would have had to do substantial filling work. Lanuola’s evidence that she filled ‘most’ of the allotment, however, is an exaggeration as half of it is still swamp. That said, Sifa acknowledged that filling had been done. Sifa also said that his wife had sent money to Makihele to fill the land in around 2007 but I do not accept that as Lanuola was on the land, there was no specific reason to fill the allotment at the time and Makihele said nothing about it in his evidence.

[14] Secondly, Lanuola built a restaurant using her own materials and at an additional cost of around TOP$10,000. Sifa accepted that Lanuola owned the restaurant.

[15] Thirdly, with assistance from the LDS Church Lanuola built a house on the allotment after Sifa’s house was blown down in Cyclone Hina. Lanuola said that this house cost her about TOP$10,000. Sifa says he owns the new house. I find Sifa’s position difficult to accept because his house was totally destroyed, he had already lost any right to the allotment upon which it was built and he had nothing at all to do with building the new house. It is enough that I find that the house was built with assistance from the LDS Church, that it is likely Lanuola incurred some of the costs and that Sifa was not involved at all.

[16] Between December 2007 and March 2008 there was correspondence between Mr. Laki Niu, acting for Sifa, and Mr. Masao Paasi, acting for Lanuola and her husband. This resulted in Lanuola agreeing to vacate the allotment by 29 March 2008. Lanuola was unaware that Sifa had lost his allotment in 1982. Sifa has alleged that Lanuola obtained a copy of his United States passport by deceptive means and provided it to the Minister of Lands to cause the Minister to cancel his registration. Lanuola denies that and I accept her denial. There is nothing at all to suggest that Lanuola was involved.

[17] In around January 2008 Lanuola become aware, from a neighbor, that Sifa was a citizen of the United States and could not hold an allotment for that reason. In February 2008 her son, Sioeli Kulu, applied to the Minister for the allotment.

[18] On 25 February 2008 Sifa and his wife met with the Minister of Lands, Hon. Tuita. There is a record of the meeting which suggests that it was Sifa who made an approach to the Minister because of concern about the effect of his foreign citizenship. Hon. Tuita told Sifa that he was cancelling his registration. He also told Sifa that he and his wife could apply for a lease of the allotment. It is recorded, and I accept, that Sifa asked the Minister what would happen if he was re-admitted as a Tongan national and Hon. Tuita told him that he would cancel the lease and re-grant him the allotment. The Nationality Act was amended in 2007 to allow any person who had ceased to be a Tongan subject prior to the amendment to be re-admitted to Tongan nationality.

[19] Sifa said that following this meeting he did not understand that he had lost the allotment. I do not accept his evidence. There was nothing else he could have taken from the Minister’s advice that he was going to cancel his registration.

[20] Sifa also denied that he applied for a lease of the allotment as the Minister suggested. It is unlikely that Sifa would not have acted on the Minister’s advice because he wanted the allotment for his sons. In addition, the evidence of Mr. Halatanu was that the Ministry has a record of documents received in 2008 and 2009 relating to a request by Sifa to lease the allotment. The documents themselves cannot be found. I find that Sifa did apply for a lease.

[21] Consistent with the fact that the Minister had two applications before him for the allotment (Sifa for a lease and Sioeli for a grant as his town allotment) in 2009 Lanuola and Sifa attended a meeting with Hon. Tuita. Lanuola said that Sifa’s wife and son were also present along with a Lands Officer called Maka. Sifa denies that his son was ever present at such a meeting but nothing turns on that. There is no record of the meeting but both Lanuola and Sifa referred to it and to a discussion about subdividing the allotment. Lanuola said that the Minister made a decision to subdivide the allotment and that Maka recorded everything in a red book. Sifa said that the Minister only said that he would see if the allotment could be subdivided.

[22] I find that the possibility of subdividing the allotment was discussed at the 2009 meeting and that later Hon. Tuita did decide to subdivide the allotment with the intention that one half would be granted to Sioeli as his town allotment and one half to Sifa by way of lease. There is no written decision to that effect but I base my finding on the following facts.

[23] First, the Minister was faced with competing claims for the allotment from Sioeli and Sifa which the meeting of 2009 was likely called to resolve. The subdivision of the allotment was a logical way to do so.

[24] Secondly, both Sifa and Lanuola agree that the subdivision was discussed. Following the meeting both Lanuola and Sifa met at the allotment on different occasions with Maka to discuss the subdivision. That is likely to have been to assess the allotment for subdivision on the direction of the Minister. The Minister did not call Maka to dispute Lanuola’s evidence that Hon. Tuita decided to subdivide the allotment although Maka is still employed by the Ministry. Mr. Halatanu confirmed that the allotment can be subdivided.

[25] Thirdly, Lanuola said, and I accept, that she repeatedly checked with the Ministry about progress with the subdivision and that in 2013 she was told by the Minister’s secretary that the Minister had decided to subdivide the allotment.

[26] Fourthly, on 12 June 2013 Sifa wrote to the Minister stating that he had heard that Hon. Tuita had approved the allotment for subdivision. Sifa said that although he signed the letter he was ill at the time, that it was written by his wife’s cousin and he did not accept its contents. I do not accept his evidence as Sifa also acknowledged that he read the letter and understood its contents before signing it.

[27] Fifthly, Sifa met with Hon. Ma’afu on 17 August 2016 and it is recorded that the Minister asked Sifa if he wanted the allotment subdivided. In the context I find this was a reference to Hon. Tuita’s intention to subdivide the allotment.

[28] In 2012/13 Lanuola made arrangements with APT to rent the restaurant from her. APT pays a monthly sum for rent but gave no evidence about what other terms are agreed or the amount of any investment APT has made in the building.

[29] In around 2015 Lanuola’s first husband died and Sioeli Kulu succeeded to his town allotment. Sioeli was no longer entitled to claim the allotment. After Lanuola had taken advice from Mr. Halatanu her grandson, Kelepi Tangi Jnr, applied for the allotment on 8 June 2016. The survey fee was paid but the application was not processed as Mr. Halatanu was aware of the dispute between Lanuola and Sifa.

[30] On 17 August 2016 Sifa met with Hon. Ma’afu. There is a record of the meeting. Sifa complained that Lanuola had not moved from the allotment. He said that although Lanuola claimed that she had filled the allotment he had done so. He said he owned the house. Sifa referred to the correspondence between Mr. Niu and Mr. Paasi in 2007/2008. The Minister called for the correspondence and said ‘...I will not grant a part of this allotment until this is ready and then it will proceed’. This was the meeting at which the Minister asked Sifa if he wanted the land subdivided and Sifa said he did not. His reason was that he had two sons who he wants to inherit the allotment.

[31] Sifa was re-admitted as a Tongan national on 26 September 2016. On 28 September 2016 he applied to be re-granted the allotment.

[32] On 12 October 2016 Mr. Halatanu conducted a site inspection and he prepared a site inspection report that same day. The site inspection report reads:

FIELD INSPECTION REPORT

Applicant - SIFA PEKIPAKI

Location - KOLOFO’OU

Land Matter - CLAIM FOR AN ALLOTMENT

Time/Date - 4:00pm 12.10.2016

According to the inspection I conducted today, there is a wooden house (hurricane house) where Lanuola lives and a Chinese restaurant.

Lanuola said that the house is the substitute of Sifa’s house which was situated there and it collapsed in the cyclone in the 1980s. The hurricane house was built by donors.

Lanuola said that the restaurant also belongs to her but is rented by the Chinese.

Almost half of the allotment is swamped and is very disgusting because it is used as a rubbish dump.

Lanuola said that her eldest son Sioeli Kulu first claimed the allotment but because he was heir to an allotment in Kolomotu’a (Reg. 16.1.1920) and Kelepi S. Tangi is her grandson whom they reside with.

Signed

12.10.2016

[33] On the same day the Minister met with Sifa and Lanuola. He advised them that he was granting Sifa the allotment. Mr. Halatanu took minutes of the meeting which read as follows:

Appointment Bk 9 Folio 2

12/10/2016 SIFA PEKIPAKI & LANUOLA FIFITA – KOLOFO’OU

6/10/2016

Ma’afu - Lanuola what are you to Sifa?

Lanuola- He is my uncle.

Ma’afu - Sifa you had registered this allotment Sifa and it was cancelled because you were naturalized and now you have been readmitted to becoming a Tongan National and as I understood it there was an attempt to try and make you two agree and it couldn’t but because Lanuola lives there and her son was going to claim it but an allotment has already been transferred to him at Kolomotu’a (Longolongo).

Sifa - I have come many times to my allotment after it was lost and I couldn’t because of what Lanuola has done.

Lanuola - The allotment has already been lost and because I live there.

Ma’afu - Why do you hold on to the allotment of your uncle?

Lanuola - I am attached to the allotment as it has been more than 30 years to which I have lived there and I had already asked Sifa to give the allotment to me.

Ma’afu - What was the reason you had moved to the allotment after Sifa had registered it?

Lanuola - I was meant to watch over the allotment.

Ma’afu - You husband doesn’t have an allotment?

Lanuola - No

Fataua - Her son’s allotment at Kolomotu’a.

Ma’afu - You had an opportunity during Tuita’s time and you tried for your son but the allotment was already transferred to him the allotment at Longolongo and as it stands I think to return the allotment to Sifa and your uncle and he has been readmitted as a Tongan national and I am of the opinion to return the allotment to Sifa and if you are not satisfied with this then it is best to continue to Court but this is my decision.

[34] Lanuola did not accept that the minutes were accurate. She denies making the comments attributed to her and said that she never had an opportunity to explain her position. Mr. Halatanu is an experienced Lands Officer who has appeared before the Court many times and I have found him to be reliable. I accept that the matters referred to in the minutes were discussed.

[35] On 25 October 2016 the Minister issued a savingram directing that the allotment be surveyed and registered to Sifa. For present purposes the relevant parts of that savingram read as follows:

This allotment is number 23 on Plan 724 and the area is 1r 20p and it was registered by this person on 01.07.1971 and the registration was made void on 25.02.2008 because this person was naturalised as a foreigner. He was re-admitted as a Tongan on 26.09.2016, and he had lodged an application claiming this allotment and I grant it to him on this day 25 October 2016.

His niece Langaola [sic] is currently living at the allotment and a claim for the allotment was made by her grandson but I did not accept it because they have been living at the allotment for so many years because of her maternal uncle’s (Sifa) kindness.

[36] On 25 October 2016 Sifa commenced an action against Lanuola in the Land Court under LA 28 of 2016 seeking possession of the allotment and damages. At the same time he sought an interim injunction that Lanuola cease any business activities on the allotment and that any third parties including any ‘illegal Chinese tenants’ be removed from the allotment.

[37] On 12 December 2016 Mr. Tu’utafaiva, who was by then acting for Lanuola, wrote to the Minister referring to proceedings before the Land Court and expressing an intention to join the Minister as a party. He also challenged the Minister’s decision to grant the allotment to Sifa and requested that the Minister defer any action to register the allotment.

[38] On 19 December 2016 the allotment was registered to Sifa and he was issued with Deed of Grant 439/46.

[39] On 17 January 2017 Sifa withdrew both his application for injunction and the substantive proceeding LA 28 of 2016. On 3 February 2017 Sifa commenced this action.

The submissions

[40] In his submissions (for Sifa) Mr. Corbett conceded that under the Nationality Act Sifa lost his right to hold the allotment when he took United States citizenship. I consider Mr. Corbett is correct about that (Pahulu v Mottini & Anor [1996] Tonga LR 253). Mr. Corbett argued that upon Sifa being re-admitted as a Tongan national he was entitled to re-apply for his allotment and the Minister correctly granted it to him.

[41] Lanuola’s case was originally that the grant of the allotment to Sifa was unlawful on two grounds. First, that the allotment was not available for grant and secondly, that the Minister failed to make proper enquires, observe natural justice and avoid obvious mistakes. In closing Mr. Tu’utafaiva did not pursue the argument that the allotment was not available for grant.

[42] APT accepts that its right to remain on the allotment is dependent upon the success of Lanuola’s counterclaim and offered no additional submissions.

[43] For the Minister, Mr. Kefu argued that the grant to Sifa was lawful and was made only after a site inspection and after Lanuola had an opportunity to be heard. He argued that the decision that the Minister had to make was whether to grant the allotment to Sifa or Kelepi and that matters concerning Lanuola’s occupation and development of the allotment were not relevant considerations.

Discussion

[44] My starting point must be that Sifa is the registered holder of the allotment and prima facie is entitled to evict Lanuola and APT unless they successfully challenge Sifa’s registration or establish a right at law to be in occupation (such as by virtue of a valid lease) or if Sifa is estopped from evicting them.

[45] Sifa’s registration is final unless it is shown to have come about by error of law (i.e. in breach of the Land Act), or as result of fraud, mistake, breach of the principles of natural justice or breach of a promise made by the Minister or the estate holder.

[46] In deciding whether to make a grant the Minister is required to take steps, which must be reasonable in the circumstances, to ascertain whether the land is in fact subject to some other claim that might be an impediment to a grant or make it unavailable (Naulu v Tupou ors [2016] Tonga LR 163).

[47] Another claim may be a competing application for the land but that will not always be the case. The other claim might arise by virtue of the occupation or use of the land by a person who has not made an application for the land. For that reason the Minister was required to consider Lanuola’s history of occupation and development of the allotment before granting the allotment to Sifa.

[48] The extent of the enquires that are required of the Minister will depend on the circumstances of the case but where there are competing applications or the position is not clear a ‘detailed investigation’ is to be carried out (Naulu (supra) at [10] and Hakeai v Minister of Lands [1996] Tonga LR 142, 143). That was undoubtedly the case here.

[49] I have reminded myself repeatedly that the Minister has a wide discretion in deciding whether, and to whom, he will grant allotments. The Court shows deference to the decisions of the Minister and will not substitute its view for that of the Minister unless he has been shown to have acted unlawfully.

[50] The principles that are applicable to a challenge of a Minister’s decision to grant an allotment closely correlate to the well recognised principles applicable to judicial review. In the Land Court in Tafa v Viau [2006] Tonga LR 135, 138-139 Ford J suggested that the law should be regularised so that in determining the legality of decision-making powers exercised under the Land Act the Court should apply the same ‘tried and tested’ principles of judicial review that Courts in other jurisdiction apply when faced with similar issues.

[51] Both the Land Court and the Court of Appeal draw on judicial review jurisprudence. The ‘motivation or catalyst’ for judicial intervention (whether the Court proceeds on principles developed in the Land Court jurisdiction or in judicial review proceedings) is the same and has been described in this way (Philip A Joseph ‘Constitutional and Administrative Law in New Zealand’ 4^th Edition at 868):

The inarticulate premise illuminates the judicial role. The judge instinctively asks: Has something gone wrong that calls for judicial intervention and correction? If ‘yes’, the judge must translate the instinctual impulse into ‘legal language’ that can explain and justify the Court’s intervention. The judge must identify a recognised ground of review and show how the decision-maker has failed to comply with the law...

and at 869

There are differing formulations for describing the instinctual impulse. In Ex parte Guinness Woolf J questioned whether the impugned decision inflicted ‘real injustice’. Findings of real injustice will invariably unearth errors of law in decision making procedures, deliberative processes or applications of statutory power. The forensic task is to identify and articulate what, in short, caused the decision-making power to misfire.

[52] An overall evaluation of the facts of this case cannot but trigger an instinctual impulse that the Minister’s decision inflicts real injustice. The effect of the Minister’s decision is to remove Lanuola and her family from their home despite 40 years of uninterrupted occupation and substantial development in favour of Sifa, who does not reside in Tonga, has not occupied the land since 1970 (48 years ago) and lost any right to hold the allotment in 1982 (36 years ago) by the voluntary act of becoming a foreign subject.

[53] It is to avoid such injustice that the Courts have consistently recognised and upheld the rights of long term occupants of land. Particularly relevant to this case is what Ford J said in Tafa v Viau [2006] Tonga LR 125, 141-142 at [25]:

To have a situation, therefore, where the Minister of Lands is able to make a grant of an allotment in total disregard for the rights of a long-term lawful occupant of the same piece of land, is quite untenable and is a recipe for lawlessness. I cannot accept that such a consequence could ever have been intended by the legislature.

[54] Which takes me to the principal issue, did the Minister go wrong in this case as a matter of law? One of the difficulties that the Land Court regularly faces in making such an assessment is that it is not the Minister’s practice to give written reasons for his decisions nor does the Minister give evidence with detail of his decision making process, the facts that he relied upon or the reasons supporting his decision. This is unfortunate and out of step with established principles that decision makers have a duty to disclose such matters so as to facilitate the Court’s function to do justice between parties.

[55] This Court is often left to identify the facts relied upon by the Minister and the reasons for his decisions inferentially from very limited evidence. Whatever may have been the practice in the past I consider that at the very least decisions of the Minister affecting people’s right to hold land should be fully recorded in writing in the interests of transparency and candor and to aid the Court to arrive at fair and just results.

[56] The evidence satisfies me that the Minister’s decision ‘went wrong’ in at least four respects. First, he failed to make proper and reasonable enquires about material matters. Secondly, and related to the first matter, the Minister failed to observe natural justice as Lanuola was not given a reasonable opportunity to state her views on the material facts or the Minister’s reasons for his decision. Thirdly, the Minister’s reasons for making his decision were incorrect and based on a mistaken understanding of the facts. Fourthly, the Minister failed to give any consideration to Kelepi’s application.

Failure to make proper enquires

[57] The Minister met with Lanuola and Sifa together on 12 October 2016. This, it is said for the Minister, was Lanuola’s opportunity to be heard by the Minister. What is of particular note is that the Minister asked no questions about the history and nature of Lanuola’s occupation of the allotment except to the very limited extent that he asked her how she came to be on the allotment. The Minister did not ask Lanuola about the work she had done to maintain and fill the allotment, how the buildings came to be on the land, who owned the buildings, what they had cost and who was now occupying them and for what purpose. These matters were most material considerations that he was required to enquire into and take into account (see Tafa v Viau (supra) and Naulu at [19]).

[58] It is no answer for the Minister to say that he did not need to ask these questions as he was aware that the allotment had been filled and built upon. The Minister was on notice of a dispute about who had filled the allotment. Sifa told the Minister at their meeting on 17 August 2016 that Lanuola said she filled the front of the allotment ‘but I filled it’. The Minister needed to ask about that. Certainly also there was material before the Minister that should have put him on notice of the possibility of a dispute as to the ownership of the house. Sifa told him that he owned the house yet in Mr. Halatanu’s site inspection report he recorded that that house had been built in the 1980’s (well after Sifa had gone to the United States) ‘by donors’.

[59] Regardless and more generally, in a case such as this where the Minister knows that an allotment has buildings on it he should make enquires about how the buildings came to be there and who owns them.

[60] It is also not the case that it was Lanuola’s responsibility to raise these matters. It is the Minister who is bound to make reasonable enquiries as the circumstances require. Lanuola cannot be expected to know what information the Minister has or does not have before him or what sort of additional information she could usefully provide the Minister.

[61] In addition, the evidence satisfies me that the Minister advanced two reasons for his decision to grant the allotment to Sifa. The first reason, which he disclosed to Sifa and Lanuola at the conclusion of the meeting of 12 October 2016, was that Lanuola had been given an opportunity to claim the allotment during the time of Hon. Tuita but had not made proper efforts to do so. The second reason is contained in the Minister’s savingram of 25 October 2016 and was that Lanuola had always been living on the allotment because of Sifa’s kindness.

[62] If the Minister intended to rely on these matters as the basis for his decision he needed to make reasonable enquiries about them. The Minister did not have a clear record of what had gone on in the time that Hon. Tuita was the Minister as relevant documents were lost. The Minister needed to ask Lanuola about the efforts she had made to claim the allotment before he could conclude that her efforts were not ‘proper’. What Lanuola said in her evidence, which is reflected in the minutes of the meeting, is that she did not have any chance to say anything once the Minister told her what his decision was going to be. I have no doubt that had she been asked Lanuola would have provided the Minister with a great deal of relevant information about Sioeli’s application, her dealings with Hon. Tuita, her understanding that the allotment was to be subdivided, her dealings with other Ministry staff including Maka, Mr. Halatanu and the Minister’s secretary and about Kelepi’s application. Similarly, the Minister should have put to Lanuola that she was living on the allotment due only to Sifa’s kindness but did not do so and in fact never mentioned it at the meeting.

The Minister’s reasons

[63] The two reasons the Minister advanced for granting the allotment to Sifa were mistaken. In relation to the first reason, Sioeli’s application for the allotment was made in 2008. It was open to Hon. Tuita to grant the application but he decided to subdivide the allotment and lease half to Sifa and grant half to Sioeli. Despite Lanuola’s persistent efforts the Ministry failed to carry out the subdivision. Lanuola sets all this out in paragraphs 22-34 of her brief of evidence which went largely unchallenged. It was not until 2015 that Sioeli’s application was withdrawn because by that time he had inherited his father’s allotment. On advice from Mr. Halatanu, Lanuola had Kelepi apply for the allotment. I do not see how it can be said that Lanuola did not make proper efforts to claim the allotment. The Minister did not know about the extent of Lanuola’s efforts to claim the allotment because he did not ask her what efforts she had made.

[64] In relation to second reason, Lanuola did not always live on the allotment as a result of Sifa’s kindness. The Minister’s firm but erroneous belief that this was so is not only stated in the savingram of 25 October 2016 but can be inferred from the Minister’s loaded question to Lanuola in the meeting of 12 October 2016 ‘Why do you hold on to the allotment of your uncle? It might be said that Lanuola remained on the allotment by Sifa’s kindness for the period 1978 and 1982 but in 1982 Sifa lost his right to hold the allotment. From that date he could not give Lanuola permission to live on the allotment or require her to leave and he extended her no kindness. It may be that the Minister’s belief was based on an understanding that it was in 2008, when Hon. Tuita directed the cancellation of his registration, that Sifa lost his allotment. If that is so the Minister was mistaken as to the law because it was the act of becoming a foreign citizen in 1982 that extinguished Sifa’s right to hold his allotment not the administrative act of the Minister to cancel his registration.

A reasonable opportunity to state her views

[65] The Minister’s duty to make reasonable enquiries will usually require him to hear from the parties as the Minister did in this case. However, to discharge his duty this must be a meaningful exercise where the parties are given a reasonable opportunity to express views on matters that the Minister is both required and intends to take into account before making a decision. Ideally and where possible the parties should be told what the Minister intends to do and his reasons so that they can provide a response before a decision is made. The minutes of the meeting of 12 October 2016 satisfy me that the meeting was not meaningful but perfunctory. I am satisfied that Lanuola did not get an opportunity to state her views on material matters or upon the Minister’s reasons for the decision to grant Sifa the allotment.

No consideration of Kelepi’s application

[66] Kelepi’s application should have been considered by the Minister on its own merits. In Vaea v Minister of Land and Fetu’ufuka [1974-1980] Tonga LR 13, 14 the Privy Council said in relation to competing applications for an allotment that ‘All the factors relevant to the claims of the parties must be considered and taken into account.’

[67] Kelepi was not present at the meeting of 12 October 2016 and there is nothing in the minutes to suggest that the Minister ever met with him or sought his views or gave any consideration at all to the merits of his application. Mr. Halatanu agreed in cross-examination that there was no discussion at the meeting of Kelepi’s application.

[68] In my view the only explanation for this is that the Minister conflated the interests of Kelepi and Lanuola, which he was not entitled to do. The Minister’s savingram of 25 October 2016 mentions Kelepi’s application but only to record that it was not accepted because ‘they’ (presumably meaning Lanuola and Kelepi) had been living on the allotment due to Sifa’s kindness. The Minister was required to consider and balance the merits of the competing applications of Sifa and Kelepi. Relevant factors in this case would include the need that each had for the allotment, the use that they intended to make of it and the extent of their present connection to the allotment.

Conclusion

[69] The Minister’s decision to grant the allotment to Sifa cannot stand and I will make a declaration that Sifa’s grant was invalid and direct the Minister to cancel the grant. The Minister must make a fresh decision on the applications before him and any others that may be made after making further enquires and giving all interested parties an opportunity to be heard.

Result

[70] Sifa’s claim is unsuccessful and is dismissed.

[71] Lanuola’s counterclaim is successful. I make a declaration that Sifa’s registration of the allotment is invalid and must be set aside. The Minister is directed to cancel Sifa’s registration and his Deed of Grant 439/46.

[72] The Minister is directed to make a fresh decision on the applications that are presently before him and any others that may be made in respect of the allotment after giving all parties an opportunity to be heard.

[73] Lanuola and APT are entitled to their costs which are to be fixed by the Registrar if not agreed.

O. G. Paulsen
NUKU’ALOFA: 5 February 2018. P R E S I D E N T