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Land Court of Tonga |
IN THE LAND COURT OF TONGA
NUKU’ALOFA REGISTRY
LA 21 of 2018
BETWEEN : SIONE MA’AKE KAUFUSI
- First Plaintiff
AND : SITIVENI KAUFUSI
- Second Plaintiff
AND : LORD MA’AFU TUKUI’AULAHI
- First Defendant
AND : MINISTER OF LANDS
- Second Defendant
BEFORE HON. JUSTICE NIU AND ASSESSOR TOUMO’UA
Counsel : Friend of the plaintiffs, Mr. Piveni Piukala.
Mr Sione Taione for first defendant.
Ms ‘Elisiva ‘Akau’ola for second defendant.
Trial : 7 and 8 September 2020.
Submissions : filed by Ms. ‘Akau’ola on 15 September 2020.
: filed by Mr. Taione on 16 September 2020.
: filed by Mr. Piukala on 22 September 2020.
: filed by Mr. Taione on 1 October 2020.
: filed by Ms. ‘Akau’ola on 5 October 2020.
Hearing of Submissions: 12 October 2020.
Ruling : 20 October 2020.
RULING
History of the plaintiffs’ claim
[1] The plaintiffs’ claim began in 2018 when the first plaintiff filed on his own his claim against the two defendants, Lord Ma’afu who is the estate holder and the Minister of Land (who also happens to be Lord Ma’afu), that they arbitrarily and unreasonably refused to grant to him the tax allotment which his father’s father’s younger brother had held, upon the death of the widow of that younger brother in 2014. The counsel for the plaintiff was Mr. Pouono.
[2] Because of irregularity of service, defence of the first defendant was only filed in July 2019 and it stated that the widow had surrendered the allotment in 2013 and as no claim was made by any heir, it reverted to the first defendant in 2014.
[3] In September 2019, the plaintiff applied and the Court joined the oldest brother of the plaintiff, who is heir to their father, as second plaintiff and ordered that the plaintiffs file an amended statement of claim to reflect the new plaintiff and the ground of his claim.
[4] No such amended statement of claim was filed or served but in December 2019, the defence of the Minister of Lands was filed. At a chamber hearing I had called in December 2019, Mr. Mo’ale, who had taken over from Mr. Pouono, informed me that he was withdrawing as counsel for the plaintiffs. I directed him to write and inform the plaintiffs of it and to inform the plaintiffs to instruct another counsel to attend, and if they had no counsel, that they attend themselves on 16 January 2020.
[5] Mr. Mo’ale duly complied and filed a copy of his letter to the plaintiffs dated 10 January 2020. At the hearing on 16 January 2020, the plaintiffs attended and said that they could not find a lawyer yet. They asked for more time to find a lawyer. I gave them until 2 March 2020 to find a lawyer and for such lawyer to advise them on this question: Whether or not an heir loses his right to succeed to the allotment if no claim is made by him or on his behalf to the Land Office for the allotment within 12 months after the death of the holder of the allotment? A minute of that hearing was given to them.
[6] At the hearing in March, the plaintiffs attended with Mr. Piveni Piukala, their friend, and asked that they be given time to engage overseas counsel, one being mentioned was Dr. Rodney Harrison. The matter was adjourned to the following week.
[7] In the following week, the plaintiffs asked that they be given time to locate documents in the Land Office which might show that the allotment had not reverted to the first defendant.
[8] On 17 March 2020, it was confirmed that the surrender by the widow was approved by Cabinet on 10 May 2013. The matter was further adjourned to see if there was publication of the notice of that surrender.
[9] On 24 April 2020, the matter was set down for trial to be held on 21 May 2020 with Mr. Piukala acting as friend of the plaintiffs without reward.
[10] On 21 May 2020, in opening for the plaintiffs, Mr. Piukala stated that the plaintiffs were claiming the allotment as the lawful heirs to it and that the surrender of the allotment by the widow in 2013 was unlawful because the law did not provide any right for her to do that. He also claimed that the Minister had a conflict of interest because he was estate holder and Minister and failed to act lawfully in respect of this allotment.
[11] Mr. Taione correctly pointed out that the plaintiffs were thereby changing their cause of action which Mr. Pouono had stated in the initial claim, and he stated that on the instruction just given to him about the matter from his client, the father of the plaintiffs was an illegitimate child and asked for time to confirm the evidence of that.
[12] At a chamber hearing on 9 June 2020, it was agreed that although the plaintiff’s father had been born before his parents were married, his birth was legitimated by operation of law upon their subsequent marriage. Trial was then agreed to resume on 7 September 2020.
[13] On 7 September 2020, the trial resumed and the claim of the plaintiffs was confirmed to be what was stated by Mr. Piukala on 21 May 2020.
Mr. Piukala as friend of the plaintiffs.
[14] Before the trial continued on 7 September 2020, I required evidence to be given as to why Mr. Piukala, who is not a law practitioner, should represent the plaintiffs. The first plaintiff (55) said that he had paid 3 lawyers to do his case and had asked 2 other lawyers but they did not want to do it. He said that he preferred Mr. Piukala because of his explanation. He said he could pay him but he must not do so and has not done so otherwise he would not be allowed to represent them in this case.
[15] The second plaintiff (65) said that he and his wife rely mainly on their children’s remittance from overseas for their maintenance, although they have some crops. He said he has not paid Mr. Piukala and would not pay him for his help with their case otherwise he would not be allowed to represent them in this case.
[16] Mr. Piukala gave evidence that he has not charged and he would not charge any fee or reward and he has not received and that he will not receive or accept any money or goods of any kind from anyone in respect of his work in connection with this case. He said that he only wants to help the plaintiffs because he thought they have rights to this land under the law.
[17] In accordance with the provisions of sections 3, 10 and 11 of the Law Practitioners Act, I was satisfied that Mr. Piukala was not holding himself out as a lawyer and that he was not receiving or would be receiving any gain or reward whether directly or indirectly for representing the plaintiffs in these proceedings.
The facts
[18] The relevant facts are not in dispute.
[19] Sione Kaufusi and his wife ‘Ofa had several children of whom there were 6 sons in this order:
(a) Finau, who had no children;
(b) Filipe, who married ‘Ana and had a son, Samuela. Samuela married Vika and had children of whom Sitiveni (the second plaintiff) was the eldest son and another son Sione, who is the first plaintiff. Filipe held his own tax allotment at Pea.
(c) Potemani.
(d) Peni.
(e) Suli.
(f) Vili Heti who married Meliame. They had no children and they fostered Luke Fifita as their son. Luke Fifita got married and had a son, Vili Fifita. Vili Heti held his own tax allotment at Tokomololo, which is the estate of Lord Ma’afu, the first defendant, who also happens to be the Minister of Land, the second defendant.
[20] Vili Heti died in 1989. His tax allotment was transferred to his widow, Meliame, in 1991.
[21] Filipe died in 1974 and his tax allotment was transferred to his widow, ‘Ana. In 1995 ‘Ana died and the tax allotment was transferred to Samuela in 1996. Samuela died in 2007 and the tax allotment was transferred to his widow Vika in 2008. Vika died on 17 May 2017 and the tax allotment was transferred to Sitiveni, the second plaintiff on 15 June 2017.
[22] On 2 April 2013, Meliame, widow of Vili Heti, wrote to the Minister of Lands that she wished to surrender her widow estate so that her foster grandson, Vili Fifita, could apply to hold it as his tax allotment. The Minister submitted the request to Cabinet and Cabinet approved the surrender on 10 May 2013 (CD no.422). A public notice of the surrender was published in the Taimi ‘o Tonga newspaper of 16 August 2013 in the following manner:
“Ministry of Lands, Environment, Climate Change and Natural Resources
(There then appeared in the Tongan language the following:)
LEGAL NOTICE
SURRENDER OF LAND
(SECTION 54)
Dated 13 August 2013.
Ma’afu (signed)
--------------------
Hon. Ma’afu
Minister of Lands, Environment, Climate Change & Natural Resources.
Name of holder Town Cabinet decision no./Date town/tax allotment.”
Then followed some 342 names and their towns, Cabinet decision number and date and then whether town or tax allotment. There was no numbering of each name. There were 2 columns on page 12 and 2 columns on page 13 of the newspaper and there were 90 names in each column except for the first column on page 12 which had only 72.
[23] Meliame’s name appeared as the 44th in the second column on page 12. The notice was published only once, that is, only as in that one newspaper of 16 August 2013. Some of the Cabinet decisions were dated back in the 1990s and 2000s, and the reason was because the persons involved never came to pay for publishing the notices of their surrenders and the Ministry decided to pay for only 1 notice on two full pages of the newspaper so that the surrender could be published.
[24] No claim was made by any person for the tax allotment surrendered by Meliame by 16 August 2014.
[25] On 30 October 2014 Meliame died.
[26] In late January 2015, Sione (first plaintiff) went and inquired at the Land Office about Meliame’s tax allotment because she had died and he wanted to apply for it and was told to come in the following week and see the Minister himself because Meliame had already surrendered the allotment.
[27] On 4 February 2015, Sione met with the Minister and told him that Vili Heti had told him that when he and his wife Meliame would die he, Sione, would have the tax allotment and that was why he came to see him. The Minister told him that Meliame had already surrendered the allotment to her foster son but the foster son had let other people farm it instead and that he, as estateholder, had taken the allotment off him. He told Sione that he had decided to sub-divide the tax allotment into town allotments because there were many people in Tokomololo without land and who wanted land and that he would give him 3 town allotments because he said Sione’s father was the eldest. Sione then gave him the names of his 3 sons. The Minister told him that when the sub-divisions were ready the Secretary would contact him to get the forms for his sons.
[28] On 4 March 2015, the Minister directed that 4 acres 1 rood 7.4 perches of the tax allotment be subdivided into 30 perch lots.
[29] In late October 2015, Sione lodged with the Land Office an application by him to be granted Vili Heti’s tax allotment. On 5 November 2015, he met with the Minister again and the Minister informed him that the subdivision was going ahead and because there were too many people wanting allotments, he decided to give him only 2 instead of 3 town allotments. Sione agreed that his application be disregarded.
[30] From October 2017 to October 2018, the Minister granted town allotments to, and the survey fees were paid by, 13 applicants and leases to 14 persons, but all of which have not been registered because of the present claim of the plaintiffs.
[31] On 10 October 2018, the first plaintiff, Sione, filed his claim in this Court.
The issues
[32] There are 4 issues to be decided in this case and submissions have been made by all the parties in respect of them but I consider that the last 3 issues all depend on the first issue. These are the issues which Mr. Piukala raised and which I have outlined in paragraph 10 above.
Are the plaintiffs (or one of them) the heir to the allotment?
[33] The first issue is whether or not the plaintiffs, or at least one of them, is the lawful heir to the allotment. The rules of succession to allotments are provided under S.82 of the Land Act, and paragraph (e) thereof provides as follows:
“(e) in default of any unmarried daughter of the deceased holder an allotment shall descend to the deceased holder’s brother or if such brother be dead to the eldest male heir of the body of such brother. If the deceased holder’s eldest brother be dead without leaving any male heir of his body then the holder’s next eldest brother shall succeed or if he be dead the eldest male heir of his body and so on taking the deceased holder’s brothers in succession in order of their ages;”
[34] Because Vili Heti had neither a son or a daughter, his eldest brother, Finau would have been his heir but Finau had died before Vili Heti died and Finau had no children, so in accordance with S.82 (e) “the holder’s next eldest brother,” who was Filipe, “shall succeed”. But Filipe had already died in 1974, and so in accordance with S.82 (e) “or if he be dead the eldest male heir of the body of such brother”. The eldest male heir of the body of Filipe was his son, Samuela. But Samuela had died in 2007, before the allotment became available to descend to him. The allotment only became available to descend according to that rule when the surrender of the allotment by Meliame became effective on 16 August 2013 or when Meliame died on 13 October 2014.
[35] The question then arises and I ask myself: Did the right of Samuela to succeed as heir to Vili Heti’s allotment vest in and accrue to him on the death of Vili Heti in 1989? Or did it only accrue to him upon the surrender by or death of Meliame? I consider that the answer is provided by the opening words of S.82 themselves. They are as follows:
“82. Subject to the life estate of the widow, the succession to a tax or town allotment shall be as follows:”
I consider that that provision is mandatory. It requires that the succession, and the right of any heir to succeed to an allotment, shall be subject to the life estate of the widow. And I do not think that it means that the right has already vested upon the death of the deceased holder but that it is simply deferred until the widow’s estate ends. I consider it means that the heir has no right at all to succeed until the widow’s estate ends.
[36] If the right has already accrued to and has become vested in the heir upon the death of the deceased holder, then he is already lawfully entitled to the allotment irrespective of any requirement that he has to claim his right to the allotment. But S.87 expressly requires that he does and that if does not do that, the allotment reverts to the Crown or to the hereditary estate holder of whose estate the allotment forms part. That section provides as follows:
“87. If no claim to a tax or town allotment has been lodged by or on behalf of the heir or widow with the Minister or his Deputy within 12 months from the death of the last holder, or by the date specified in the notice made pursuant to section 54, such allotment if situate on Crown Land shall revert to the Crown and if situate on an hereditary estate shall revert to the holder.”
[37] That right of the widow, such as is provided by the opening words of S.82, is consistent with her constitutional right. Clause 113 of the Constitution includes this provision: “A widow shall have the right to succeed according to law to her deceased husband’s tax and town allotments.”
[38] Accordingly, I consider that the heir acquires no right to the allotment upon the (date of) death of the holder. He only acquires it when he lodges his claim with the Minister or his Deputy within 12 months after the death of the holder or after the surrender thereof by the holder. In other words, the right of Samuela to succeed as heir to Vili Heti’s tax allotment was conditional on 2 things:
(a) that he survived the widow, Meliame, and
(b) that he lodged his claim as heir within 12 months after Meliame died.
He failed the first condition and so he could not fulfil the second condition.
[39] Mr. Piukala however argues that the grandsons of the brother of the deceased holder, such as the plaintiffs in the present case, are heirs under S.82 (e). I do not agree. Section 82 (e) does not provide that grandsons of a brother of the deceased holder can succeed as heir to the deceased holder’s allotment. It only provides for the brother and the eldest male heir of his body to succeed to the deceased holder’s allotment. The words of the provision are clear: “If the deceased holder’s eldest brother be dead without leaving any male heir of his body then the next eldest brother shall succeed or if he be dead the eldest male heir of his body and so on ...” It provides only for the brother and his son, not his grandson.
[40] I consider that that provision, that only the sons, and not the grandsons, of the brother, is to succeed as heir was deliberate. That is because S.82 (c) expressly provides for the sons and the grandsons of the deceased male holder to succeed as heir instead. And S.84 expressly allows the sons and grandsons of a deceased male holder to elect to succeed to the deceased holder’s allotments or to retain their own allotments, and to prohibit any other person from making such election. This Court has held that that is so in the case of Fifita v Minister of Lands and Huahulu [1981-1988] Tonga LR 65. In that case, there were no children of the deceased holder but he had an older brother who had a son who had several sons. By the time the widow in that case died, the brother and his son had died. The Minister sub-divided the deceased holder’s tax allotment into town allotments. The grandsons of the brother claimed that they were the heirs to the tax allotment. The Court dismissed their claim. It held that the paragraph (e) limited the heirs to only the sons of the brothers.
[41] I therefore find and I hold that the plaintiffs, who are grandsons, and not sons, of Filipe, the next eldest brother of Vili Heti, are not lawful heirs to the tax allotment of Vili Heti. That is sufficient to dispose of the claim of the plaintiffs, but I will also deal with their other grounds of claim.
Was the surrender by the widow lawful?
[42] The second issue is whether or not the surrender of the allotment by the widow was lawful. The answer to that question has already been decided by the Court of Appeal. In Schaumkel v ‘Aholelei [2013] TOCA (AC 14/2012), the Court of Appeal stated:
“Although S.54 does not apply to a widow with a life estate, a widow must be able to surrender her right to an allotment, and in the absence of a statutory procedure directed at such surrender we are satisfied the procedure approved by the Minister was appropriate.”
It also confirmed that a widow could lawfully surrender her widow’s estate in the case of Tu’akoi v Tu’akoi & Minister of Lands [2016] Tonga LR 243, where the procedure adopted by the Minister was similar to what was adopted in the present case. Accordingly, I am satisfied that the widow, Meliame, lawfully surrendered her widow estate in the allotment and that it reverted to estateholder, Ma’afu, the first defendant on 16 August 2014, before she died on 14 October 2014.
Did the Minister of Lands have a conflict of interest?
[43] The third and fourth issues may be combined: whether or not the Minister of Lands had a self-interest in the present instance because he was also the estate holder in the tax allotment in question. The answer to that is yes because he had a self-interest in the reversion of the tax allotment to him as estate holder. As estate holder, he could sub-divide the tax allotment and lease the lots out for which he may be paid consideration as well as annual rent for lease of those lots.
[44] However, that did not render unlawful the actions that he took to effect the wish of the widow to surrender the tax allotment to him as estate holder. He duly sought and obtained the Cabinet approval of the surrender and duly published the notice of the surrender in the newspaper so that any lawful heir to the allotment would claim it, just as he was doing with all requests of holders to surrender their allotments.
[45] It is clear from the evidence of the second plaintiff, Sitiveni, (who would have been the lawful heir if S.82 (e) had provided that a grandson of a brother would be heir) that he was not interested in Vili Heti’s tax allotment at all because he was waiting, and was already assured that when his mother, Samuela’s widow, would die, he would succeed as heir to his father’s tax allotment. He never claimed Vili Heti’s tax allotment when it was surrendered by the widow, and if he had not known it had been surrendered, he never claimed it as heir when the widow in fact died. On the contrary, he encouraged the first plaintiff, Sione, who was not an heir to the tax allotment of Vili Heti to apply to the Minister, who he knew was also the estateholder, to grant it to him instead.
[46] An estateholder, and the Minister, are not obliged to grant an allotment which has reverted, to any person, not even the heir who had failed to claim it. So, neither Ma’afu, the first defendant, nor himself, as the Minister, was in breach of any law or duty towards the plaintiffs.
[47] However, Mr. Piukala argues that the Minister ought to have granted the tax allotment of Vili Heti to Sione because he was “an heir” to the allotment. But, as I have said, Sione was not and is not an heir to it. Besides, a Minister may agree with the wish of an estate holder that a reverted tax allotment be subdivided into town allotments, if there is a need for town allotments for the people in the estate holder’s estate. It is also the responsibility of the Minister to see that people without lands are given lands to live on. Section 50 of the Land Act provides for that:
“(d) If no land is available under rule (c) then the applicant may have his allotment from Crown Land.”
[48] Accordingly, I am not satisfied that the Minister did anything in the present case which was improper or unlawful or in breach of his responsibilities as Minister of Land. It so happened that in the present case, the interests of the estateholder was the same that of the Minister _ to provide more land for people to live on.
Summary
[49] For the reasons which I have stated above, I am satisfied and I hold:
(a) that neither plaintiff is an heir to the tax allotment of Vili Heti Kaufusi under S.82 (e) or under any other rule of succession in the Land Act;
(b) that the widow of Vili Heti Kaufusi, namely, Meliame Kaufusi, lawfully surrendered her estate as widow and that the tax allotment lawfully reverted to the estateholder, Lord Ma’afu, the first defendant, on 16 August 2014;
(c) the actions of the second defendant Minister of Lands in respect of that request of the widow to surrender her estate in the tax allotment were lawful; and
(d) the refusal by the first defendant estateholder and the Minister of Lands second defendant to grant the tax allotment to the first plaintiff was lawful.
[50] Accordingly, I dismiss the claims of the plaintiffs and I order that they pay the costs of the defendants, to be taxed if not agreed.
Niu J
Nuku’alofa: 20 October 2020 J U D G E
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