Falekaono v Taufa [2019] TOLC 8; LA 19 of 2018 (19 November 2019)

IN THE SUPREME COURT OF TONGA
CIVIL JURISDICTION
NUKU’ALOFA REGISTRY LA 19 of 2018
______________________________________________________________________

BETWEEN : JENAIHOKULANI CHRISTOPHER FALEKAONO
- Plaintiff

AND : 1. SULIASI TAUFA
2. MINISTER OF LAND
- Defendants

BEFORE HON. JUSTICE NIU AND ASSESSOR TOUMO’UA

Counsel : Mr Tomasi Fakahua (deceased)

and Mr Hiva Tatila for the plaintiff.

Mr Viliami Mo’ale for the first defendant.

Ms Leotrina Macomber for the second defendant.

Trial : 10, 11 and 12 June 2019

Submissions : by first defendant 12 July 2019
by plaintiff 3 September 2019
by second defendant 16 September 2019

Further direction : 25 September 2019

Further submissions: memorandum by second defendant filed 4 October 2019
: by the plaintiff 18 October 2019
: by the first defendant 24 October 2019

Ruling : 19 November 2018

RULING

The facts

1. Mateo Falekaono (Mateo) held the town allotment in question in 1948. It was called “Fale Mamaue II and it had an area of 1 rood 20.2 perches (the allotment). His son and heir was Tu’ipulotu Falekaono (Tu’ipulotu). Tu’ipulotu had his own town allotment named “Konga Toafa” in 1954.
2. In 1971, Mateo became entitled to succeed as heir to another town allotment named “Fale Mamange”. That allotment had an area of 1 acre 2 roods 33.44 perches. He elected to take that allotment and to surrender his allotment Fale Mamaue II to Tu’ipulotu. The allotment (Fale Mamaue II) was accordingly registered in Tu’ipulotu with a deed of grant (Book 188 Folio 61) on 31 March 1971 with the area of 1 rood 20.2 perches, and Tu’ipulotu’s town allotment “Konga Toafa” was transferred to his son and heir Taniano Falekaono (Tamiano).
3. Mateo succeeded to and was registered in Fale Mamange with the area of 1 acre 2 roods 33.44 perches and he was issued with a deed of grant (Book 234 Folio 97) on 31 August 1979.
4. Tu’ipulotu surrendered half of Fale Mamaue II, (presumably with the consent of his wife, and of his own son and heir Tamiano), and it was granted to and registered in Minolu Nishi with a deed of grant (Book 111 Folio 86) on 25 January 1980, with an area of 30.13 perches, leaving Tu’ipulotu holding only 30.02 perches of Fale Mamaue II.
5. In 1985, Mateo sub-divided Fale Mamange (whether under s.51 or by surrender under s.54 is not known) into 7 town allotments which were granted to and registered in 5 other persons with deeds of grant dated 6 May 1985 and 1 other person with deed of grant dated 2 April 1997. The remaining town allotment with an area of 35.2 perches was the one still held by Mateo but he leased it to one Kaneisini Mateo with deed of lease no.4661 registered 19 August 1987, for 50 years to expire on 18 August 2037, with an annual rent of $10.00.
6. Those town allotments were then built on and occupied by those persons.
7. In 1994, Mateo died and Tu’ipulotu wrote and informed the Minister that he and his son and heir Tamiano both elected to retain their own town allotments and asked that he be registered as a trustee for his grandson, Jenai (who is the plaintiff) on the town allotment Fale Mamange (with the remaining area of 35.3 perches) and which was leased and occupied until the year 2037) because Jenai was still a minor. The Minister agreed and the name of Tu’ipulotu was entered on the book which is referred to in the Land Office as the Register of Town Allotments of Tongatapu “as trustee for Senai Falekaono” for the town allotment Fale Mamange on 30 January 1995. At that time the plaintiff was only 13 years old.
8. Tu’ipulotu died on 7 October 1998 and on 21 October 1998, his son and heir Tamiano wrote and informed the Minister that he elected to retain his own town allotment and that the allotment of Tu’ipulotu, Fale Mamaue II, be transferred from Tu’ipulotu to his (Tamiano’s) son and heir, Senai Falekaono, the plaintiff.
9. On or about 24 January 2002, the Minister agreed to that request and the plaintiff’s name was entered in the said register of town allotments as the holder of Fale Mamaue II.
10. No one was living on or occupying that allotment, Fale Mamaue II, and there was only the remains of some concrete floor on the allotment.
11. On 15 January 2009, Suliasi Taufa, the first defendant, applied to the Minister to be granted Fale Mamaue II as his town allotment. The estate holder Noble Fakafanua, signed his consent to the grant of the allotment to him.
12. An officer in the Land Office attending to that application wrote to the Minister on 30 April 2009 and informed him, wrongly, that the allotment Fale Mamaue II had not been claimed by any person (within 12 months) after the holder, Mateo, died in 1994 and that the allotment had reverted to the estate holder Fakafanua, that Fakafanua had consented to the grant of the allotment to the first defendant, and requested the direction of the Minister.
13. On 6 May 2009, the Minister agreed to make the grant and he directed that the grant be processed. On 26 May 2009, he directed by savingram that surveying be carried out and that a deed of grant be prepared for issue and registration in the first defendant.
14. On 14 January 2010, the Minister issued and registered the deed of grant (Book 400 Folio 12) for the allotment Fale Mamaue II in the name of the first defendant.
15. In 2011, the first defendant cleared and cleaned the allotment and had a front end loader remove the remains of the concrete floor on the land and kept and mowed it properly over the following years. In that same year 2011, it was discovered that Minolu Nisini’s fence was over the boundary onto the the allotment and the first defendant and Minolu agreed that the fence be left as it was for 50 years in consideration of $2,000 which Minolu paid to him.
16. In 2013, Tamiano heard from Minolu that the first defendant was registered on the allotment and he flew from the United States (where he had always been living) to Tonga and went to the Land Office as a result of which the Minister wrote a savingram to the Secretary for Lands, on 24 April 2013, and informed him that he had decided that the registration of the town allotment of the first defendant be cancelled and directed that the registration of the first defendant be cancelled, because he found out that the allotment had been transferred to the plaintiff on 13 March 2002.
17. That savingram is stated to be copied to the first defendant and to Fakafanua and to the Town Officer and the plaintiff but no evidence was given that it was ever served on any of them.
18. But the duplicate copy of the deed of grant (Book 400 Folio 12) of the first defendant which was kept by the Minister has diagonal lines drawn across it with the words (in Tongan) written in between them as follows:

“DISREGARD – CANCEL (NULL & VOID) 24.4.13

MINISTER OF LAND INSTRUCTION – THIS TOWN ALLOTMENT

ALREADY REGISTERED BY JENAIHOKULANI FALEKAONO”

19. The original deed of grant of the first defendant was still with the first defendant and it had not be cancelled or instructed to be brought in to be cancelled.
20. A copy of the Minister’s savingram was given to Tamiano and he photocopied it and gave a copy to his sister, Lovely Maka, to give to the first defendant and she told him that she would give it to him but she never gave it to the first defendant or informed him of it. She however told Tamiano that she had given it to the first defendant. She said that she did not agree with what Tamiano was doing because the first defendant was their cousin, being their aunt’s son. The first defendant says he was never aware that his registration had been cancelled. I accept that as a fact.
21. The first defendant kept the allotment maintained. By 2017, he had filled the land of the allotment with some 15 truck loads of soil worth $4,500. His upkeep of the allotment over the years had cost him some $6,000. No one complained or objected to his maintenance of the allotment or to the dumping and levelling of the soil on it.
22. In 2017, the first defendant applied to the MBF Bank for a $47,000 loan, and to mortgage the allotment as security thereof, to build his dwelling house on the allotment. He produced his deed of grant to the bank and his loan was approved. He applied to the Ministry of Lands of the Minister for approval of the site plan and construction drawings of the dwellinghouse. The Ministry of Lands approved the plan and drawings on 22 September 2017.
23. They were forwarded to the Ministry of Infrastructure for approval and issue of the building permit of the dwellinghouse. That permit was granted on 21 October 2017.
24. On 27 February 2018, the bank forwarded the application of the first defendant to the Minister of Lands for approval and registration of the mortgage of the allotment. It also paid the registration fee of the mortgage of $26.45 on the same day. Thereafter, the bank began disbursing the loan to the first defendant and the construction commenced.
25. The construction was of concrete foundation and floor, concrete block walls including the partitions and walls of all the rooms, with a corrugated iron roof covering the whole house and the verandahs on three sides of the house.
26. Tamiano heard of the construction and flew to Tonga in August 2018. By then, only the doors and windows were required to be installed.
27. On 22 August 2018, the plaintiff’s counsel wrote to the first defendant and attached a copy of the savingram of the Minister of 24 April 2013 (which stated that his registration of the allotment was cancelled) and required him to stop his construction.
28. Upon receipt of that letter, the first defendant went to the Land Office and found out, and I accept, for the first time that the Minister had cancelled his registration of the allotment.

Plaintiff’s claim

29. The plaintiff claims that the grant made by the second defendant to the first defendant and the deed of grant, Book 400 Folio 12, issued on 14 January 2010, in pursuance thereof was unlawful because he the plaintiff had already lawfully succeeded as heir to the allotment and was entered in the register on 13 March 2002. He prays for an order that the said deed of grant of the first defendant be cancelled, and for an order that the first defendant be evicted together with his house and family from the allotment.

First defendant’s defence and counter claim

30. The first defendant says that he had been lawfully granted the allotment by issue of deed of grant Book 400 Folio 12 on 14 January 2010 and that the Minister had no authority to cancel that grant on 24 April 2013. He also says that despite that purported cancellation, the Minister or his Ministry approved his uncancelled deed of grant and granted the approval of the construction of his dwellinghouse on the allotment and also accepted payment of the registration fee of the mortgage of the allotment in his name for the loan to construct that house. He also says the purported cancellation was invalid because it had been carried out without notice and without any opportunity having been afforded to him to be heard before cancelling his deed.

31. The first defendant further says that the registration of the allotment, effected by the Minister in the plaintiff’s name on 13 March 2002, was unlawful because the plaintiff could not elect under s.85 of the Land Act because he held no town allotment himself, and that the allotment accordingly reverted to the estateholder, Lord Fakafanua, and that the first defendant lawfully applied for it and it was lawfully granted to him in 2010.

32. The first defendant, in the alternative, says that the second defendant Minister of Lands, is liable to him for compensation for the loss and damages which he has suffered in consequence of the errors and negligence of the second defendant Minister.

Second defendant’s defence

33. The second defendant does not oppose the plaintiff’s claim. In fact, he opposes the first defendant’s defence and counterclaim. He says that the registration of the plaintiff as holder of the allotment on 13 March 2002 was valid because he had lawfully claimed it within 12 months of the holder’s (Tu’ipulotu) death in 1998, and that the subsequent grant thereof to the first defendant in 2010 was invalid.

34. He also says he was not liable to the first defendant for any damage for negligence because he says he owed no duty of care to him or in equity because he says that at the time he purported to make the grant to him in 2010, he did not foresee that there was going to be a mortgage or construction on the allotment.

Third party notice

35. A third party notice was, by leave of the Court, issued by the first defendant to the MBF Bank but no response or appearance was made by the Bank at all during these proceedings.

Section 85 of the Land Act

36. The answer to the claim of the plaintiff and to the counter-claim of the first defendant depends on section 85 of the Land Act. It provides as follows:

“85. Where the heir being the son or grandson of the deceased holder elects to retain the allotment he already holds it shall be lawful for the eldest son of a son who is the heir of the deceased holder or for the brothers of a grandson who is the heir of the deceased holder provided such eldest son or brothers of a grandson already hold a town or tax allotment to elect in succession between the allotment they already hold and that of the same kind held by the deceased holder and if all the persons aforesaid elect to retain the allotments already held by them it shall be lawful for the next son of the deceased holder if alive and provided he already possesses an allotment of the same kind to elect as aforesaid but if he be dead or if he elects to retain his own allotment it shall be lawful for his sons provided they already hold allotments of the same kind to elect in the order of their ages and if they also elect to retain their allotments it shall be lawful for the next son and his sons to elect and so on until a son or grandson elects to take the allotment of the deceased holder but if all the sons and grandsons elect to retain the allotments they already hold the allotment of the deceased holder if situate on Crown land shall revert to the Crown and if situate on an hereditary estate shall revert to the holder provided that if any of the persons above-mentioned do not already possess an allotment of the same kind the right to elect shall pass to the next person entitled as though the person immediately preceding him had elected to retain his own allotment.”

37. That means that if a son or a grandson, (who is not the heir) of the deceased holder does not hold an allotment of the same kind as that of the deceased holder, he does not have the right to succeed to the allotment of the deceased holder, and the right to elect passes on to the next son or grandson who holds an allotment of the same kind. If all the sons and grandsons who hold an allotment of the same kind elect to retain their own allotments, the allotment of the deceased holder then reverts to esateholder. It does not devolve upon any son or grandson who does not hold an allotment of the same kind.
38. That provision only applies if the heir has elected under section 84 to retain the allotment of the same kind which he already holds. That section provides as follows:

“84. Save and except a son or grandson of the deceased holder, no person who already holds a tax or town allotment shall be permitted to succeed as heir to another allotment of the same kind as the allotment he already holds or to choose between an allotment already held by him and one to which he becomes entitled as heir:

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

39. If the heir elects under s.84 to take the allotment of the deceased holder and to surrender the allotment which he already holds, the surrendered allotment must be granted by the Minister to any son of the heir (who makes the election) beginning with the eldest who does not hold an allotment of the same kind. In default of such son, then to the next oldest brother of the heir who has no allotment of the same kind and similarly his sons and younger brothers and their sons. In default, the allotment reverts to the estateholder. S.86 provides for that.
40. It is therefore only if the heir elects under s.84 to retain his own allotment that the right of election under s.85 comes into operation. And a son or grandson who holds no allotment of the same kind has no right to succeed to the allotment of the deceased holder. The reason for that is this: The holding of an allotment carries with it responsibilities: To build upon and occupy and accommodate one’s family on the town allotment and to maintain and keep it weeded, swept and cleaned for the sake of the health of his family and of the people of the village or town in which the town allotment is located. And if it is a tax allotment, the holder must cultivate it with sufficient crops and coconut trees for the subsistence and wellbeing of his family as well as for the contributions to village and national obligations and functions. If he applies for and holds an allotment and abandons it, that is, without utilizing it for those purposes, the allotment is taken off him at the suit and proof of abandonment by the estateholder in the Land Court, as provided in s.44(2). To hold an allotment is therefore a sign of responsibility and trust. To hold none is an indication of the opposite.
41. The Act grants to every male Tongan subject by birth the right to hold a town allotment and a tax allotment, but he must apply for it and must comply with the requirements to be granted the allotments and must also comply with the conditions of holding those allotments as above stated. If he had not taken on those responsibilities of applying for and of holding a town allotment or of a tax allotment, then he is not fit to succeed to and to hold an allotment which has devolved from his father or grandfather, unless he is the heir of the father or grandfather. He is thereby deemed to have deliberately not applied for an allotment and has instead awaited the devolvement of the allotment or allotments upon him as heir.
42. Those provisions of s.85 have been enacted by the Legislature with those purposes in mind for the well-being of the Kingdom and they have consistently been applied and upheld by this Court and by the Privy Council (Court of Appeal). In Tonga & Ors v Minister of Lands & Ors (1956) Vol. II Tonga LR. 96, one Fili held a tax allotment until his death in 1931 and his widow held it until her death in 1950. By then, Fili’s 4 sons all had tax allotments of their own, and they all wished the tax allotment of their father to go to a son of one of them, who himself had no tax allotment. The estateholder agreed to their wish, but they failed to claim the tax allotment within 12 months of their father’s death. The allotment reverted to the estateholder who agreed to have it granted to someone else and the Minister granted it to that applicant instead. In giving the judgment of the Land Court, Hunter J stated in p.97:

“The four sons of Fili living at the widow’s death (the plaintiff) all had allotments of their own and were therefore entitled to elect.

According to the evidence they all, with the possible exception of Hufanga (and the other brothers also) wished the allotment to go to his (Hufanga’s) son Tu’ifua who had no allotment. This of course is not possible – see section 74 [now s.85].

......

The words of section 76 [now section 87] are clear and unambiguous and if the requirement is not complied with the Act says that the allotment shall reverted to the estateholder.

......

I have discussed the case with the learned assessor and I think his view is that according to Tongan custom the plaintiff’s should succeed, but custom cannot overrule the clear provisions of an Act made by the Tongan Parliament.

The Court is bound by the Act just as every citizen is and whatever its sympathies maybe it must interpret the law as it finds it.”

43. In Ma’afu v Minister of Lands (1959) Vol. II Tonga LR 119, a tax allotment was held by one Finau and then by his widow until her death. Finau only had a married daughter living upon his widow’s death. The heir to Finau was then his next eldest brother, Kafoa, but he had died leaving his son, Ilavalu, but who already was holding his own tax allotment. Ilavalu’s own son, the plaintiff, held no tax allotment. Hunter J held as follows:

“Section 78 [now section 84] provides that no one who already has a tax allotment shall be permitted to succeed as heir to another tax allotment, except a son or grandson of the deceased holder, who may elect between his own allotment and the one to which he is entitled as heir. Unfortunately for Ilavalu he was not a son or grandson of the deceased holder (Finau) but a nephew and therefore he could not succeed. As Ilavalu could not succeed it goes without saying that his son, the present plaintiff, has no claim and the allotment reverts to the Crown.

Regrettable as it may be, that an allotment of such sentimental attachment to the Ma’afu’s should be lost to the family, the law is quite clear and I must find a verdict for the defendant.”

44. In Fatai v Deputy Minister of Lands (1960) Vol. II Tonga LR 172, the facts were these. Sateki died a widower leaving no children. His next eldest brother was Aliki who held his own tax and town allotments. His own son and heir, the plaintiff, had his own tax and town allotment. Both the Land Court (per Hunter J) and the Privy Council (Court of Appeal) held that neither Aliki nor the plaintiff could elect to succeed to the allotments of Sateki because of the provisions of what is now s.84, although they were both heirs under what is now s.82(e). What is clear is that the plaintiff wanted his uncle’s town and tax allotment to go to his own son who had no town and tax allotment of his own, or to choose to take the uncle’s allotments and to surrender his own allotments to his son who held no town or tax allotment. The Land Court and the Privy Council both held that he could not do that.
45. The same result was decided by the Land Court in the cases of Kilifi & Kilifi v Minister of Lands & Kilifi [1996] Tonga LR 31 (per Hampton CJ), Kilifi v Heimuli [1998] Tonga LR 247 (per Ward CJ) and Langi v Lafo’ou [2001] Tonga LR135 (per Ford J).
46. Consistent with those authorities, Paulsen LCJ, decided on 7 November 2017 in Lopeti & Lopeti v Lopeti & Minister of Lands (LA12 of 2016) as follows:

“[21] Upon Alekisio’s death without a widow his heir (son) Tavite, who already held his own town and tax allotment, was entitled under s.84 of the Land Act to elect to take Alekisio’s town and tax allotments or to retain his own. It is common ground that if Tavite elected to take Alekisio’s allotments his own allotments would devolve to Yohanny (his son and heir) (section 86 of the Land Act). However, if Tavite elected to retain his own allotments Yohanny was not entitled to Alekisio’s allotments because Yohanny had no town or tax allotment of his own. This is the effect of Section 85 of the Land Act (Kilifi & Kilifi v Heimuli & Ors [1996] Tonga LR 31.”

47. Against all those authorities, is an unreported decision of the Court of Appeal in 2013 in the case of Schaumkel & Schaumkel v Aholelei & Minister of Lands (AC14 of 2012). In that case, the holder died leaving a widow and two sons and his town allotment had been built upon and occupied by the plaintiff and family for some 30 years. The widow and the eldest son both choose not to take the allotment and the Minister registered the second son as successor thereto, because he had no town allotment. The Court of Appeal upheld that registration and succession as being validly made under s.85 of the Land Act. It held as follows:

“[32] We hold that the allotment did not revert to the Crown under the concluding provisions of s.85 when Aisea elected to retain his existing allotment simply because his younger brother Soane did not already hold a town allotment and had no right of election under s.85. The succession went to Soane under s.82.”

48. The plaintiff and the second defendant rely upon that authority, because the plaintiff did not hold a town allotment of his own when his father Tamiano, the son and heir of Tu’ipulotu, made his election to retain his own town allotment.
49. That decision of the Court of Appeal is contrary to the express provision of s.85 which provides that if all “heirs” with allotments of the same kind elect to retain their own allotment the allotment of the deceased holder shall revert to the Crown or to the hereditary estateholder as the case maybe. The Learned Lord Chief Justice Paulsen has not followed it when he decided Lopeti & Lopeti v Lopeti & Minister of Lands.
50. I have to decide whether to follow the Court of Appeal decision in Schaumkel’s Case or the Lord Chief Justice decision in Lopeti’s Case. I have sworn to uphold the Constitution and the laws of the Kingdom and S.85 is one of those laws. The King and the Legislative Assembly in the Legislature of the Kingdom have decided that those provisions of s.85 be the law and as judge of this Court, I have to uphold them.
51. I hold, following the decisions of the authorities to which I have referred and to that of the Lord Chief Justice in the Lopeti Case, that when Tamiano elected to retain his own town allotment, the town allotment Fale Mamaue II of his father, Tu’ipulotu, reverted to the estateholder, Fakafanua, by operation of law, namely, the provisions of s.85, because the plaintiff, Jenai, his son, had no town allotment of his own.
52. I therefore hold that the purported registration of that allotment in the plaintiff’s name in 2002 was unlawfull, and that the grant of that allotment to the first defendant by deed of grant book 400 folio 12 on 14 January 2010 was and is valid.
    

Orders

53. Accordingly, I make the following orders:
    • (a) The second defendant Minister of Lands shall forthwith cancel the entry which he caused to be made in the register of town allotments of Tongatapu, for Ma’ufanga, entry no.160, by deleting the name of Jenaihokulani C. Falekaono therefrom as holder of the town allotment Fale Mamaue II.
      
    • (b) The second defendant Minister of Lands shall forthwith cause to be removed from the book of register of town allotments no.400 the cancelled folio no.12 and to have it replaced with an uncancelled folio no.12 in the name of the first defendant, Suliasi Taufa, and the same date as the 14 January 2010, and to be duly signed by the Minister of Lands.
      
    • (c) The second defendant Minister of Lands shall pay the costs of the plaintiff and of the first defendant, to be taxed if not agreed.
      

L. M. Niu
NUKU’ALOFA: 19 NOVEMBER 2019 J U D G E