Fasi v Tomasi [2019] TOLC 11; LA 2 of 2019 (20 December 2019)

IN THE LAND COURT OF TONGA
NUKU’ALOFA REGISTRY

LA 2 of 2019

BETWEEN : MAFI FANGA-‘I-PALUKI UATESONI FASI

- Plaintiff

AND : SOAPE TOMASI

- Defendant

AND : MINISTER OF LANDS

- Third Party

BEFORE HON. JUSTICE NIU
Counsel : Mrs Fatai Vaihu for plaintiff
Mrs Petunia Tupou for defendant
Ms ‘Akanesi Katoa for third party
Trial : 21, 22, 23 and 24 October 2019
Submissions : by Mrs Tupou on 19 November 2019
by Mrs Vaihu on 28 November 2019
Memoranda : by Mrs Tupou on 3 December 2019
by Mrs Vaihu on 9 December 2019
Date of Ruling : 20 December 2019

RULING

Dispute

[1] The plaintiff claims that he has lawfully been granted the town allotment in issue by the third party Minister of Lands despite the occupation thereof by the defendant and his family and he seeks the eviction of the defendant and his family from the allotment.

[2] The defendant says that he has been living on this allotment for 37 years and that he had never been notified to vacate it until last year and that he was not consulted and was not given any opportunity of being heard before the Minister granted the allotment to the plaintiff. Accordingly he says the grant made to the plaintiff was invalid. He also says that the claim of the plaintiff is time barred under S. 170 of the Land Act.

History

[3] This allotment was part of a tax allotment with a total area of 7 acres 3 roods 3.6 perches which was on Crown Land and it was first granted to and registered in one Vilisoni Lutui on 13 February 1899. Presumably after he died, the tax allotment was transferred to one Sione Lutui and then upon his death, it was transferred to his widow, ‘Ema Lutui.

[4] It is not clear from the evidence who the holder of the tax allotment was when it was sub-divided into at least 36 town allotments with this particular town allotment being lot 36. But I accept as a fact that in the early 1980s, the son and heir of Sione Lutui and ‘Ema Lutui, Siueni Lutui, was in control of it, and that he authorised the defendant and his wife to come and live on this lot 36.

[5] The defendant and his wife built a Tongan fale on it and they lived there in 1982 and they have lived there up to now.

[6] Siueni Lutui gave evidence that he had given the defendant permission to reside on a different allotment and to reside there only temporarily until they could find their own land elsewhere. But I do not believe that evidence. I believe and accept the evidence of the defendant that Siueni gave him lot 36 as his, because Siueni said in his evidence that he never told the defendant to move from lot 36 to the lot he said he had allowed him to live on, that he had not told the defendant that he was to live on it temporarily, and that he has never told the defendant to vacate the allotment at any time up to now.

[7] I believe and accept the evidence of the defendant that he came from Ha’apai and lived in Kolofo’ou and became acquainted with Siueni in the kava clubs and that when he got married and lived with his wife at the wife’s parents’ home at Mataika, Kolofo’ou, Siueni offered him lot 36 and showed him that lot to build their house on so that he and his wife would be free from the pressures of living with the wife’s parents. The defendant accepted and he and his wife built their Tonga fale there and lived in it straight away. No money was demanded by Siueni and none was paid because the allotment was given in kindness and friendship.

[8] The defendant said in evidence and I accept that later on Siueni to told him to build a better house for him and his family so that his family was safe at night when he himself went out and drank kava. The defendant then built his present house in 2001. He said that he borrowed $600 from the Tongan Development Bank and with other money he had, he built the house with concrete floor, plywood walls and corrugated iron roof with wooden shutters and doors and a small verandah to the back as kitchen. The house consisted of 2 bedrooms and a lounge. The shower was constructed of concrete blocks outside and the toilet was a separate outhouse. He said that later on, he built another house with old plywood and covered it with black polythene as roof as a separate sleeping place for his male children and himself so that the wife and children could have the main house for themselves. In 2003 he paid $400 which was required for having the aid of a plastic water tank to collect rain water for their drinking and use. These two houses and tank and shower and toilet are shown in the 2 photographs that were produced in evidence as Ex 1.

[9] The widow, ‘Ema Lutui, granted two permits in 1994. One permit was of lot 34 to one Tevita Manu Fasi for 10 years at $10 rent per year. The other permit was of lot 36 (the lot on which the defendant was residing) to one Semisi Fasi for 10 years at $10 rent per year. Both permits were registered by the third party on 7 September 1994 as permits no. 5574 and 5575 respectively.

[10] No evidence was given about the occupation of lot no. 34, but the defendant stated, and I accept, that no attempt was made by Semisi Fasi, or by anyone on his behalf, to enter or to occupy lot 36, and no one ever informed the defendant that an application was being made for such permit or that any permit had been granted or registered in respect of the lot he was occupying.

[11] In 2005, the widow, ‘Ema Lutui, surrendered her widow’s estate in the tax allotment upon approval thereof by Cabinet on 21 December 2005 in its decision no. 1294 of same date. A notice of that surrender was published and it required the claim by anyone who was heir to the tax allotment to be lodged by no later than 14 November 2008.

[12] No claim was lodged by any person, not even by Siueni Lutui, as heir to the tax allotment. Mr Semisi Moala, senior lands registration officer of the office of the third party Minister of Lands, gave evidence and confirmed that fact in paragraph 9 of his brief of evidence. At the end of hearing of the evidence in this trial, Mr Moala was asked by counsel Mrs Tupou and I directed that he search in the records of the Ministry of Lands for documents, the 3^rd of which was “Siueni Lutui’s claim to the tax allotment as heir upon its surrender by ‘Ema Lutui”. In a letter by Semisi Lutui dated 19 November 2019, he stated, inter alia, “In respect of the 3^rd document requested, no document is found in the Minsitry, and I have checked and searched genuinely to ascertain whether or not an affidavit of claim or lawful claim was made by Siueni Lutui for the tax allotment surrendered by ‘Ema Lutui but still without success”.

[13] Prior to the surrender of the tax allotment by the widow, ‘Ema Lutui, Siueni Lutui had written 2 letters to the Minister of Lands, both dated 9 March 2004, one letter requesting that the permit of Tevita Manu Fasi be cancelled so that he, Siueni, could surrender lot 34 in order that it could be granted to Tevita Manu Fasi’s son, Kulisitofa, as his town allotment, and the other letter requesting that the permit of Semisi Fasi be cancelled so that he could surrender lot 36 in order that it could be granted to Semisi Fasi himself as his town allotment. That demonstrated further the assumption by Siueni Lutui that he had authority and title to the tax allotment when it was still lawfully his mother’s.

[14] In pursuance of those letters, Cabinet approved the surrenders of the two lots in favour of Kulisitofa and of Semisi Fasi on 24 October 2007 by its decision no. 1121 of the same date.

[15] A notice of that surrender was published and it required that any claim to the surrendered land be lodged with the Minister of Lands by no later than 14 November 2008, failing which the land would revert to the estate holder.

[16] No claim was lodged by any person and the lots 34 and 36 reverted to the Crown.

[17] On 14 November 2008, Semisi Fasi applied to the Minister to be granted lot 36 as his town allotment. On 12 December 2008, he was told to pay the survey fees and he paid it in the same day in sum of $46.00. On 5 March 2009, the Minister registered the town allotment, lot 36, and issued to Semisi Fasi his deed of grant book 391 folio 78. However I accept as a fact that he took no step to notify the defendant to vacate or to evict him from the allotment or even to inform him of his title.

[18] On 13 February 2015, Semisi Fasi wrote to the Minister and asked that he surrender the town allotment lot 36 in order that it be granted to his older brother’s son, Mafi Fasi, (the plaintiff), as his town allotment.

[19] Cabinet approved that surrender on 8 May 2015 by its decision no. 483 of same date. Notice of that surrender was published on September 2017 and it required that any claim be made by 18 September 2018.

[20] No claim was lodged by anyone and the allotment reverted to the Crown.

[21] Immediately on the following day, 19 September 2018, the plaintiff’s application for lot 36 to be his town allotment was lodged with the office of the Minister of Lands, and it was checked and the particulars of birth of the plaintiff were entered on the application by the officer, Seli Taufa, on the same day. The survey fee of $46.00 was paid the next day, 20 September 2018 and on 25 September 2018, Seli Taufa forwarded the application to another officer, Fataua Halatanu, to “action” it.

[22] Fataua Halatanu did not do anything with it. I am satisfied that the reason he did not “action” the plaintiff’s application was because he had already advised the defendant, who had received letters from the plaintiff’s lawyer to vacate the allotment, not to move from the allotment. He said in his evidence that he did so advise the defendant.

[23] On 16 October 2018, Fataua Halatanu wrote a note on a piece of paper and stapled it at the top of the plaintiff’s application form. The note stated (in Tongan);

“This allotment be inspected because it is presently being occupied by one Soape Tomasi and there was a trespass case concerning it.

(Signed) FHalatanu 16.10.18.”

That date, “16.10.18”, was the day Fataua Halatanu gave evidence in that trespass case in the Magistrate’s Court.

[24] Fataua Halatanu stated that after that day (16.10.18) the defendant came and sought his advice and he advised him to write to the Minister and to apply for the allotment. He said that the defendant did that and he filled in the application form for the defendant and it was lodged on 30 October 2018. He said he then wrote a note on a second piece of paper and stapled it beside the first piece of paper stapled to the plaintiff’s application. The note stated (in Tongan):

“Note : Refer to the letter and application of Sioape Tomasi for this allotment.

(Signed) F. Halatanu 30.10.2018”

He said that he just left both the plaintiff’s application, with the stapled notes, and the letter of the defendant to the Minister and the defendant’s application, in a file on his desk and did nothing further about them.

[25] The plaintiff’s mother, Fusi Fasi, subsequently checked up at the Land Office as to the status of her son’s application, and that Seli Taufa got the plaintiff’s application out of the file on Fataua Halatanu’s desk. I am satisfied that he had the two notes stapled at the top of the form folded back and photocopied the plaintiff’s application without the notes being shown thereon, and he then put back the original application in the file and left it on Fataua’s desk as it had been and went with the photocopied application of the plaintiff. He did not tell Fataua what he had done.

[26] Seli Taufa then spoke with Siueni Lutui, who told him that he had surrendered that allotment for Semisi Fasi and that he agreed that it be now granted to Semisi Fasi’s nephew, the plaintiff. He said that Siueni told him that he never agreed to surrender the allotment for the defendant, that he had never promised the defendant that he would give him the allotment and he said that the defendant was only occupying the allotment temporarily. Seli stated that he conveyed those information to the Minister. He said that the Minister then decided to grant the allotment to the plaintiff, and the Minister accordingly signed his consent as estate holder on the plaintiff’s application on 20 November 2018. Seli Taufa also said that he had visited the allotment before then and had taken two photographs of the two houses of the defendant, and the water tank, shower house and the outhouse. The two photographs were produced as exhibit (No. 1).

[27] The grant of the allotment to the plaintiff was entered into the book kept in the Land Office called the Register of Town Allotments on 4 December 2018, after a deed of grant Book 452 Folio 92 had been issued to the plaintiff on 30 November 2018.

[28] On 4 February 2019, counsel for plaintiff wrote to the defendant and demanded that he vacate the allotment in 14 days but the defendant did not do so. On 20 February 2019, the plaintiff filed his present claim in this Court.

Submissions of counsel

re Absence of evidence of title of Siueni Lutui

[29] Mrs Tupou submits that as there is no evidence that Siueni Lutui claimed the tax allotment after it was surrendered by the widow, ‘Ema Lutui, the tax allotment had reverted by operation of law to the Crown, the estateholder, and Siueni Lutui never had any lawful title to the tax allotment.

[30] That appears to be a fair statement because the burden of proving that Siueni Lutui had lawful title to the tax allotment vested upon the plaintiff because he had said in paragraph 10 of his statement of claim that Siueni Lutui became registered as holder of the tax allotment in about the year 2004, and the defendant stated that he did not admit that allegation in his paragraph 10 of his statement of defence. Accordingly, the plaintiff has failed to prove that Siueni Lutui had lawful title to the tax allotment.

[31] However, I am not sure if anything of substance hinges on whether or not Siueni Lutui ever had lawful title to the tax allotment, with regard to the present proceedings, which is simply whether or not the grant of lot 36 to the plaintiff as his town allotment was lawful. For the grant to be valid, the title to the land, before the grant is made, must lawfully vest in the Crown. If ‘Ema had surrendered the whole tax allotment and Cabinet approved it, ‘Ema thereby divested herself of her title to the allotment. If Siueni did not claim the allotment within 12 months of the date of first publication of the notice of surrender, the allotment reverted to the Crown and title thereof vested in the Crown. Any purported surrender of lot 36 of the tax allotment in 2004 by Siueni (which Cabinet approved on 24 October 2007, decision no.1121) was of no effect because Siueni had no tax allotment of which he could surrender a part of it. It had already vested in the Crown when he failed to claim it in 2005 and 2006.

[32] So that the subsequent grant of lot 36 by the Minister to Semisi Fasi in 2009 may be valid because the Crown had lawful title to it before it was granted to him.

[33] What may be of substance however is the statement by Mrs Tupou in paragraph 4 of her memorandum of 3 December 2019, that “there is an absence of evidence that the surrender by ‘Ema Lutui was ever advertised”. If that is the case, i.e. that notice of the surrender by ‘Ema Lutui was never published as is required by S.54 of the Land Act, then it may well be that the whole tax allotment, including lot 36 is still in abeyance, that is, with no one holding title to it because it has not yet reverted to the Crown, because no date has been specified in any notice by which the allotment would revert to the Crown, if no claim was lodged by the lawful heir thereof.

[34] But that issue was never pleaded or raised and no evidence was called or given in respect of it, and I think it would be wrong to speculate about it.

[35] Mrs Vaihu has argued in her memorandum dated 6 December 2019 that because no notice of ‘Ema’s surrender was published, the tax allotment had continued to vest in ‘Ema and so when she died in 2019, Siueni, the heir, can still claim it. Again no pleading or evidence was made or given in respect of that and as that issue was never raised or argued, I think it would be wrong for me to make any ruling or give any opinion on it either.

S.170 time bar

[36] Mrs Tupou has submitted that the claim of the plaintiff is barred by S.170 of the Land Act. That section provides that no person shall bring in this Court any action but within 10 years after the time at which the right to bring such action shall have first accrued to some person through whom he claims. She argues that the right to bring the action to evict the defendant from this allotment had accrued o Semisi Fasi when he had been granted the permit of the allotment (no.5575) on 7 September 1994, and that the plaintiff has claimed this allotment, by applying for it, through him, Semisi Fasi, because Semisi Fasi had surrendered the allotment specifically for him and the Minister has granted it to him because of that surrender.

[37] I am afraid that that would be stretching the provisions of S.170 too far. The Courts have held that the only person “through whom he claims” is the person to whom the plaintiff is lawful heir, and from whom he has acquired the lawful title to the interest in the land as heir thereof. It does not extend to any previous holder from whom the plaintiff has not inherited the title to the interest as heir. In the present case the plaintiff is not an heir of Sione Lutui.

[38] Mrs Tupou argues that there may be good reasons for expanding the interpretation of the provision as she has suggested but I consider that that should be left to the Legislature. As it presently provides, the words “through whom he claims”, in my view, do not include the person from whom a plaintiff has inherited the title because of the word “claims”. It is in the present tense. It means the claim which the plaintiff presently makes and not the claim which he had already made by which he acquired the lawful title to the interest in the land. Otherwise the word would have been “claimed”, the past tense. The word “claims” used would apply to a claim by a plaintiff who is acting as trustee or next friend of the person with the lawful title of the interest because he would thereby properly be bringing the action through the minor or the incapacitated person “through whom he claims”. And it would appear that the use of the word “claims” and not the word “claimed” was deliberate because the word “claims” is again repeated further on in the provision itself: “or if such right shall not have accrued to any person through whom he claims then within 10 years next after the time at which the right to bring such action shall have first accrued to the person bringing the same”.

[39] I therefore do not agree that the claim of the plaintiff is barred by Section 170 of the Land Act because the plaintiff did not succeed to this allotment as heir. He acquired it by way of a fresh grant made by the Minister to him.

Breach of natural justice

[40] Mrs Tupou has also submitted that the grant which has been made by the Minister to the plaintiff was invalidly made because the grant was made in breach of natural justice. She says that an essential element of natural justice required that where a person whose interests are likely to be adversely affected by a decision, the decision maker must consult such person and consider any representation made by that person before making such decision. She submits that the defendant was not afforded any such opportunity to make any representation before the Minister decided to grant the allotment to the plaintiff.

[41] Ms Katoa, for the Minister third party, says that there was no such breach of natural justice. She says that the defendant was aware that the plaintiff was claiming the allotment as his because he received the letters from the plaintiff’s lawyers many months before the grant was made and that one letter had told the defendant to lodge his claim or application with the Minister if he had any right to the allotment. She says that the defendant did have the opportunity to make representation when he lodged his application for the allotment and his letter to the Minister on 30 October 2018. She says that those were sufficient opportunity given to and representation made by the defendant, such that natural justice was afforded to the defendant before the Minister made his decision to grant the allotment to the plaintiff.

[42] The letter of the defendant referred to by Ms Katoa reads as follows (as translated in):

“Mataika

30/10/2018

Hon. Minister

Land Office

Ministry of Lands, Survey and Natural Resources

Nuku’alofa

Hon. Minister

I respectfully convey to you my application concerning the town allotment on which I presently reside at Mataika.

This allotment is part of the land of Siueni Lutui who is my friend. He came to me in 1982 and when we met I was living as an extra at the home of my wife’s parents at Halaleva.

He told me to come to Mataika and to cut and clear the bush and keep the allotment I am applying for, for me to live on and from that day up to now I have been living on that land.

A woman named Fusi Fasi recently contacted me and told me to vacate the allotment because they have already registered it and we ended up in Court and it transpired that the allotment was not registered in anyone. That is why I am begging you for the chance that I register this allotment as mine because it is now 36 years since my family and I have lived on this allotment.

I respectfully thank you for any mercy you would grant me in this request.

Yours respectfully

(signed) STomasi

Soape Vave Tomasi.

Ph: 23-166.”

[43] The application of the defendant for the allotment, dated “30.10.2018”, was properly filled in for this allotment and with all the particulars of birth of the defendant as a Tongan subject over 16 years of age and with the number of his birth certificate “173B1955”.

[44] That letter and that application of the defendant were not forwarded to the Minister at all and the Minister was not informed of them at all. As I have stated above in paragraph 26 above, Seli Taufa only conveyed to the Minister the information that Siueni Lutui had told him. The Minister was never aware of the defendant’s side of the story. That cannot be a fair representation on behalf of the defendant. I am satisfied that there was no natural justice afforded to the defendant. The fault of the officers, Seli Taufa and of Fataua Halatanu, in failing to give to the Minister the letter and application of the defendant falls upon the Minister as head of the Ministry and upon himself as well because he was aware that the defendant was occupying the allotment, and it was clear from the photographs that he had been occupying it for some time. He ought to have required both Siueni Lutui and the defendant, as well as the plaintiff, to attend before him and to hear their stories in the presence of each other in order that each party has a fair opportunity of responding to all matters with which he disagrees. That way the Minister has all the information and can then decide. That did not happen in this case and so the decision to grant the allotment of the plaintiff was accordingly made in breach of natural justice and is invalid.

Order

[45] Accordingly, I order that the plaintiff shall return his deed of grant book 452 Folio 92 dated 30 November 2018 to the Minister of Lands forthwith, and that the Minister of Lands, upon receipt of said deed of grant, forthwith cancel it together with the duplicate thereof which he retains at his office.

Grant to the defendant

[46] It is not uncommon that this Court orders the Minister of Land to make a grant of an allotment and to register the same according to law in an appropriate case.

[47] I am satisfied that this is an appropriate case.

[48] This allotment is on Crown land. It has reverted to the Crown, either because Siueni did not claim it when ‘Ema Lutui surrendered it, or when Semisi Fasi surrendered it and nobody claimed it.

[49] Both the plaintiff and the defendant have applied for it. They are the only applicants. The plaintiff lodged his on 19 September 2018 and the defendant lodged his on 30 October 2018. They are both Tongan subjects of over 16 years of age and they are both male. The plaintiff has paid his survey fees and the defendant has not because he has not been told to. But the main and critical difference is that the defendant is already in occupation of the allotment and he has been in occupation, undisturbed occupation and possession, for 37 years.

[50] That occupation was and is lawful. Mrs Vaihu for the plaintiff says that the defendant was and is a trespasser, but the Magistrate Court did not find the defendant guilty of trespassing and no appeal was taken against that finding. I do not find any evidence that the defendant was or is a trespasser or squatter. I am satisfied that he had lawfully been allowed by the holder of the allotment, ‘Ema Lutui, to live on the allotment because I have found that she was consent that the heir, Siueni Lutui, could do as he pleased with it and he did and the defendant was allowed by Siueni Lutui to live on the allotment ever since. The defendant occupied, and is occupying, the allotment lawfully.

[51] S.50(e) of the Land Act provides:

“(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 in which the applicant is resident.
I have underlined the critical words in that provision.

[52] This allotment is available to be granted as the town allotment of a person because it has not been granted to anyone. But it is not possible to grant it to the plaintiff because the defendant is already lawfully residing on it. On the other hand, it is possible to grant it to the defendant as his allotment because he is the one already residing upon it, and it is in “the particular area of Crown Land in which the applicant (defendant) is residing. The plaintiff does not reside in this particular area of Crown Land; the defendant does.

[53] This provision is mandatory because of the use of the words “shall where possible”. In this case it is possible to make the grant to the applicant defendant, and so that grant must be made.

Orders

[54] Accordingly, I order that the third party Minister of Lands shall forthwith instruct the defendant to pay the required survey fees and registration fees, and that the Minister upon payment of those fees, shall grant the allotment in issue in this case to the defendant and shall register and issue to him a deed of grant of the same.

[55] I order that the claim of the plaintiff is dismissed.

[56] I order that the costs of the defendant be paid by third party Minister of Lands. The plaintiff is to bear his own costs.

Niu J

Nuku’alofa: 20 December 2019 JUDGE