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Finau v Finau [2020] TOLC 13; LA 11 of 2019 (14 December 2020)

IN THE LAND COURT OF TONGA

NUKU’ALOFA REGISTRY


LA 11 of 2019


BETWEEN:


HU’AFALETALIAKI ‘ELONE FINAU Plaintiff


-and-


[1] KEIO FINAU

[2] MINSTER OF LANDS Defendants


JUDGMENT


BEFORE: PRESIDENT WHITTEN LCJ

Assessor: Mr T. ‘Ahokava

Counsel: Mr S. Tu’utafaiva for the Plaintiff

Mr W.C. Edwards SC for the First Defendant

Mr S. Sisifa S.G. for the Second Defendant

Date of trial: 3, 4 November 2020

Date of submissions: 9 November 2020

Date of judgment: 14 December 2020


CONTENTS


Introduction

  1. This proceeding concerns, in truth, a dispute not between the plaintiff and the defendants but between the plaintiff's father, Kaitu'u Finau (“Kaitu’u”) and his younger brother, the first defendant ("Keio”). Their dispute is over a tax allotment at Matafonua, known as ‘Loto’api’ ("the tax allotment") which was registered to Keio on 13 October 2016.[1]
  2. The plaintiff seeks orders that:
  3. The dispute gives rise to considerations as to when, and in what circumstances, the Minister is to be considered as having granted an allotment to an applicant and whether, and if so, in what circumstances, the Minister may cancel a grant.

Pleadings

  1. The plaintiff’s pleaded bases for the orders sought may be summarised as follows:
  2. Keio denies the plaintiff's claims and pleads, in summary, that:
  3. The Minister's Statement of Defence sets out much of the history to the tax allotment and the Ministry’s dealings with Kaitu'u, Keio and Lord Tu'ivakano in this matter. The Minister's substantive defence may then be summarised as follows:

Evidence

  1. The plaintiff gave evidence and called evidence from his father, Kaitu'u. Keio gave evidence and called evidence from Lord Tu'ivakano. The Minister called evidence from Fataua Halatanu, a land registration officer at the Ministry. A court book was prepared for trial which included the parties’ discovered documents referred to by the witnesses in their briefs of evidence.
  2. There were only two aspects of the relevant evidence that attracted some controversy, namely:

I will address those issues during the course of recounting the otherwise uncontroversial evidence from the witness’ briefs, viva voce evidence at trial and the documents to which they referred.

  1. The tax allotment in question was registered by Solomone Finau on 8 December 1913. Solomone was the plaintiff’s uncle and the eldest of Kaitu'u and his male siblings. Solomone passed away on 21 October 2010. The next brother in line is Fetaliaki, followed by Kaitu'u, then Keio. There was no claim for the tax allotment within 12 months of Solomone’s passing and so the land reverted to the estate holder.
  2. The plaintiff was born in Auckland, New Zealand on 28 April 1990. His birth was registered in Tonga. He and his family moved to Tonga in about 1998. He went to school here, but in 2012, after his application for the tax allotment was lodged, he returned to New Zealand, where he has lived since. He is currently studying and working in the construction industry. He said he plans to return to Tonga one day after he finishes his studies.
  3. It is convenient to note at this point that the plaintiff had almost nothing to do with the circumstances giving rise to this case, save for signing his application for the allotment; or with the conduct of the litigation itself. As alluded to above, it was Kaitu'u who was responsible for the initial approach to the estate holder for the land (and Solomone’s town allotment as well, referred to further below), all dealings with the Minister and his staff and for initiating and conducting this litigation. It was not until only days before the trial that Mr Tu'utafaiva actually sought to communicate directly with the plaintiff. He received all his instructions, including for the preparation of the plaintiff’s brief of evidence, from Kaitu'u. Such a practice is not to be condoned. Lawyers must have written and signed instructions from their (true) client before commencing any litigation in that person’s name. As it was, the only statement of involvement from the plaintiff in his evidence was that he had “been down with all of this from the start” with his father.
  4. Keio gave evidence that his father died while he was in New Zealand to market crops from the tax allotment in question. When he returned to Tonga, Kaitu'u had already registered Solomone's town allotment in the name of his son, the plaintiff. He also said that Kaitu'u has since gone on to arrange registration of four family allotments in the names of his sons who were all born in New Zealand, and that Kaitu'u had done so by claiming that he was the heir to all the family lands when in fact there was an older son and heir, Fetaliaki, who is living in America.
  5. As their father left no will, Kaitu'u applied for, and was granted, letters of administration over their father's estate. Kaitu'u’s application was supported by an affidavit, sworn 15 April 2011, in which he deposed at paragraph 4:
"I am the heir to all land and property and money in Westpac Bank of Tonga account number 200075385 saving account $3032 belonging to my father, Finau Latu a.k.a Laulotu Finau”.
  1. Keio complained that Kaitu'u did not give him any share of their father's personal estate.
  2. During his cross-examination, Kaitu'u sought to explain that his declaration to being the heir in his affidavit was only intended to apply to land held by his father, not all the family land. He also admitted to already holding a tax allotment of his own. Even though he accepted that Fetaliaki was his older brother and therefore the rightful heir to the father’s estate, Kaitu'u explained that he applied for letters of administration over their father’s personal estate because the bank had told him that others were trying to take the father’s money and that “all the workers” at the Ministry of Lands had instructed him to apply for the father’s land “the proper way”. He added that although Fetaliaki is still alive in America, the fact that he has been there for 43 years and, according to Kaitu'u, had said that he was not going to return to Tonga, meant that Kaitu'u considered he had to “do something” about his father’s land.
  3. On 5 October 2011, Kaitu'u wrote to Lord Tu'ivakano. On behalf of his son, the plaintiff herein, Kaitu'u applied for tax and town allotments in the noble’s estate. He described it as "family land since ‘Amato Finau Vala of Matafonua”. Accompanying the letter was a document entitled "How the land was inherited". In it, Kaitu'u listed the family lineage from Finau Vala to Solomone Finau and his wife, Ana, then to Laulotu Finau, the eldest son of Solomone. He then referred to his older brother as the next in line after Solomone died without children, as follows:
"Huafetaliaki Finau [is] still alive in America, unmarried with no children. He has released the land for me and the children to apply for and Solomone’s death will be 1 year by 21/10/2010”.

[emphasis added]

  1. Kaitu'u referred to himself as the third child of Laulotu’s children. He did not mention Keio.
  2. In or about March 2012, the plaintiff applied for a grant of both Solomone’s town and tax allotments. Relevantly, on 5 March 2012, Lord Tu'ivakano consented to the plaintiff's application for the tax allotment and the application was lodged with the Ministry. The survey fees were paid on 13 March 2012.
  3. On 16 April 2012, the Minister issued a Savingram entitled "Survey of tax allotment of Hu’afaletaliaki ‘Elone Finau in Matafonua, estate of Tu'ivakano”. In it, the Minister wrote:
"Kindly prepare a map for a surveyor to survey and subdivide the tax allotment of the person mentioned above.
... This allotment was registered on 8/12/1913. This [sic] last registered under this person Solomone Finau. Solomone has passed away (died) on 21/10/2010 and there were no claims made within one year.
This application for grant is submitted for the son of Kaitu'u ‘I Pangai Finau the son[2] of Solomone Finau. The allotment has been granted to this person by the Honourable Estate Holder on 5/3/2012. The survey fee has been paid in...(13/3/2012).
When the survey is ready then kindly prepare the deed of grant to complete the registration.”
  1. On 25 May 2012, Solomone’s town allotment was registered in favour of the plaintiff.
  2. In 2015, proceedings were commenced by the plaintiff and his brother for the eviction of Keio and his family from town allotments in Fatai and Matafonua registered in favour of those plaintiffs. The Matafonua allotment was formerly Solomone’s.
  3. On 28 October 2015, Fetaliaki wrote to the Minister. None of the parties called Fetaliaki to give evidence, even remotely by video link from California being the address on his letter. The letter was clearly hearsay. No objection was taken to it. Had objection been raised, arguably, the exception in s.89(e) of the Evidence Act may have applied.[3] In any event, during cross-examination, Kaitu'u accepted that the document was a letter from his older brother.
  4. In the letter, Fetaliaki declared himself to be the heir to the hereditary allotment known as ‘’Api Kakala’ which I understood to be the town allotment in Matafonua which Kaitu'u had earlier registered in the name of the plaintiff. He referred to Kaitu'u having evicted his brother Keio "from my allotment", that Kaitu'u had registered the allotment in the name of his son and that Kaitu'u was now claiming to be the heir. Fetaliaki then wrote:
"I have not surrendered the hereditary allotment to enable everyone to claim it. I have never done this or given it to anyone. The registration of the allotment in the name of Kaitu'u Finau’s son is unlawful.
Honourable Minister I would like the allotment returned to me. Further I have not agreed to let go of my allotment. At the present time my niece is currently looking after the allotment and carrying out the village obligations. .... I would like to convey to you my desire and hope that my niece Viola Latai Finau and Keio Finau continue occupying and looking after my allotment."
  1. A handwritten note on the first page of the letter dated 4 November 2015 indicates that it was referred to Lord Tu'ivakano.
  2. On 30 October 2015, the estate holder wrote to the Minister advising that he had withdrawn his consent to the plaintiff's application because he considered that false information had been given to him and upon which he had consented to the plaintiff's application. He also referred to having received a letter (a copy of which was said to have been attached) from "the rightful heir to the allotment", which I understood to be the letter from Fetaliaki referred to above. Lord Tu'ivakano went on to write:
“I have at the fono meeting in my estate announced to my villages that family homes will be returned to the same family notwithstanding that the time within which to claim has expired but there must be clear understanding and agreement amongst them as to whom it should be given to in the family.
In this respect, Kaitu'u Finau lied to me.
I am not certain whether you can do something and I apologise for troubling you."
  1. During his evidence, Lord Tu'ivakano elaborated on his reasons for withdrawing his consent to the plaintiff’s application. In summary:
  2. On 26 November 2015, a note was handwritten on the Minister's Savingram (16 April 2012) referring to an attached:
“request from Tu'ivakano to terminate this as the information provided to him was false, which was the reason he granted this to Kaitu'u’s son.”
  1. On 14 December 2015, Lord Tu'ivakano consented to an application by Keio for the tax allotment.
  2. On 21 December 2015, Keio submitted his application to the Ministry and paid the survey fees. Keio’s claim to the tax allotment was based primarily on him having farmed it since 1974.[4] He said that farming the tax allotment was his source of livelihood. He and his wife also have a small retail shop which assists with their daily needs. He said he was in New Zealand between 2009 and 2015 and that when he returned, Kaitu'u and others had planted crops in the tax allotment in question. Keio believed that Kaitu'u wanted the tax allotment granted to his son because Kaitu'u was negotiating to sell the tax and town allotments to the Pentecostal Church for $700,000. Kaitu'u denied the allegation when it was put to him in cross-examination. No further evidence was adduced in that regard.
  3. On 10 May 2016, Lord Tu'ivakano wrote to Kaitu'u and “Planter Group” and gave him notice to end growing of any crops on the tax allotment and to vacate it by July that year. He added that he had given authority and control of the tax allotment to Keio.
  4. On 16 May 2016, the Minister issued a further Savingram in which he directed that the plaintiff's application (item 23104) be terminated and for a deed of grant to be prepared in favour of Keio.[5] He recorded that the estate holder had agreed to the plaintiff's application on 5 March 2012 but that the estate holder had since written on 30 October 2015 requesting termination of the grant in favour of the plaintiff and that he had granted/issued the allotment to Keio on 14 December 2015. The Minister directed that the map be prepared and submitted for registration. Attached was a copy of Lord Tu'ivakano’s letter dated 10 May 2016.
  5. There followed a number of meetings between Kaitu'u, the Minister and his staff in relation to the plaintiff’s application. The Minister discovered a number of handwritten notes of those meetings. The author of the notes was not clear, although the last referred to Mr Halatanu by his first name.
  6. Kaitu'u gave evidence that between May 2016 and 2 August 2016, he met with the Minister and Ministry staff and was told on a number of occasions to return on certain dates to collect the deed of grant, only to be told each time he did return, that the deed was not ready. That was not recorded in any of the Ministry notes referred to by Mr Halatanu in his evidence.
  7. Of those notes, the first meeting was on 8 June 2016. The note recorded that Mr Laki Niu SC (as his Honour then was) was also in attendance. He then acted for Keio. Kaitu'u’s oral evidence was that the Minister told him that the tax allotment had been granted to the plaintiff and that the deed of grant could be collected in the second week of August 2016. That evidence was not included in his brief of evidence for trial. Mr Halatanu denied that any such statement was made. His evidence, which was consistent with the note, was that the Minister advised that the estate holder had withdrawn his consent for the plaintiff’s application and that the Minister was obliged to take into account the views of the estate holder. He described the matter as "a family dispute amongst themselves that cannot be resolved". He concluded by explaining to Kaitu'u that Lord Tu'ivakano had advised that “he was wrong to grant the tax allotment to the second and instead to give it to the third". Kaitu'u complained that it had been four years since the estate holder had granted the allotment and that now, while waiting for the map, he had received a letter from the estate holder demanding that he vacate the allotment. After further discussion, the Minister was recorded as concluding by stating to Kaitu'u :
"You have rights and so does the noble and I believe that you will go to trial but I will not make a decision until you can all come to a resolution and no work will be done until you make contact with us."
  1. On or about 2 August 2016, Kaitu'u again met with the Minister. Kaitu'u’s evidence was that the Minister again told him that the tax allotment had been granted to the plaintiff and that the deed of grant could be collected in the second week of August 2016. The notes of that meeting record that Kaitu'u attended the Ministry that day and wanted to know how long he would have to wait. The Minister was recorded as advising that he would try to speak with Lord Tu'ivakano before 5 August 2016 and would advise Kaitu'u accordingly.
  2. On 4 August 2016, the Minister directed that Kaitu'u be advised that the estate holder had confirmed his consent to grant the allotment to Keio. The Ministry notes for that date recorded that Lord Tu'ivakano had advised the Minister that the tax allotment was to be issued to Keio because Kaitu'u and his children live in Fatai, they did not bear any responsibilities in Matafonua and because Kaitu'u had told the estate holder that Fetaliaki (the older brother still living) would not be returning to Tonga and that he had released the allotment to Kaitu'u to apply for a grant with his children. The Minister instructed the author of the note to write to Kaitu'u advising him that the Minister would proceed with the wishes of Lord Tu'ivakano and that if Kaitu'u was not satisfied, he could take court proceedings.
  3. On 9 August 2016, Kaitu'u said that he went to the Ministry to collect the plaintiff’s deed of grant only to be told by Fataua Halatanu that the plaintiff's application had been cancelled by the Minister and the tax allotment had been granted to Keio. In his evidence, Mr Halatanu denied having given any such advice and said that he told Kaitu'u that the Minister had not yet made a decision and that Kaitu'u was not to return to the office until he was advised by letter of the Minister's decision. The Ministry’s notes of the appointment on 9 August 2016 record that the author spoke with Kaitu'u who expressed that he was very dissatisfied with the Minister's decision. Kaitu'u was recorded as stating that he had a plantation on the allotment and that no one would be permitted to step foot there regardless of who they were.
  4. A final meeting appears to have taken place on 11 August 2016.[6] The Ministry note for that date bears the name ‘Fataua’ which is the first name of Mr Halatanu. Although the note refers to Keio attending the Ministry that day, when read as a whole, it is apparent that the note was intended to record that Kaitu'u attended again ‘to register the allotment’ and was told by the mapping division that the work was on hold until instructions were received from the Minister. Fataua then wrote:
"I advised them not to come back to the office and to wait for a letter from the Minister of Lands because they are angry and may hurt or beat one of the employees."
  1. On 29 August 2016, Mr Niu wrote to the Minister confirming the Minister's earlier advice that he would let the estate holder decide to whom he wanted the allotment to be given and that he would act accordingly. Mr Niu noted that the estate holder had since given the allotment to Keio and that the Minister had directed that a deed of grant be prepared and registered in Keio's name. Mr Niu also recorded that the Ministry officer, Mr Halatanu, had said that he was afraid to carry out the Minister's direction because Kaitu'u had threatened that if the allotment was registered in Keio's name, Kaitu'u “would do something” to whomever came to the allotment. Mr Niu concluded that he did not think that such a threat should be heeded or that it should stop the due registration of the tax allotment.
  2. On 13 October 2016, the Minister issued a deed of grant in favour of Keio.
  3. On 17 October 2016, the tax allotment was registered in Keio’s name.
  4. On 18 October 2016, Mr Niu wrote to Kaitu'u referring to the estate holder’s notice to vacate dated 10 May 2016 and repeated that Kaitu'u and his farm group were required to vacate the tax allotment and remove all their crops by no later than 31 October 2016.
  5. On 19 October 2016, Kaitu'u wrote to the Minister expressing his disappointment over the Minister's decision to grant the tax allotment to his younger brother, Keio. In the lengthy letter, Kaitu'u set out some 30 various questions and complaints about the Minister's handling of the matter. In the very first, Kaitu'u wrote: "I applied for grant for the town allotment/tax allotment on 5 March 2012...". In others, he raised questions as to whether there had been favouritism and alleged that Keio's application for grant was false and deceitful because it was being made for his sons "whose names do not appear in the lawful surrender by our father", and that if Keio were to pass away, the land would descend down the wrong line of the younger brother instead of the older. As a result, he wrote, his children would “go to trial for their rights”. He also questioned Tu'ivakano’s right to cease "my application for grant when he has issued and signed my application for grant". Kaitu'u annexed a list of damages allegedly suffered including "sorrow/of the soul/of the mind/of the body", "losing work from Nov 2015-2016 overseas", "I have been prohibited from my plantation" and "much disappointment and chaos within the family".
  6. On 25 November 2016, the then CEO of the Ministry wrote to Kaitu'u in response and confirmed the advice of the Minister during their meeting that the final decision was to issue and register the tax allotment to Keio. It was explained that this was carried out due to the estate holder expressing the wish that the plaintiff's application be discontinued. Therefore, the CEO wrote, "the Honourable Minister terminated the application for grant of your son ... in order to complete the registration of Keio Finau for the tax allotment". It was also noted that the Minister understood that his decision might lead to Kaitu'u seeking his lawful rights in the court and that the Ministry had been contacted by the Office of the Commission of Public Relations (now, the Ombudsman) in relation to Kaitu'u's complaints. The CEO wrote that the same information concerning the Minister's decision on the tax allotment would be conveyed to the court and the Commission of Public Relations.
  7. On 21 June 2017, in Finau v Finau [2017] TOLC,[7] Paulsen LCJ gave judgment in favour of the plaintiffs in that proceeding and ordered that Keio and his family vacate the town allotments the subject of those proceedings.
  8. On 30 August 2017, Kaitu'u wrote to the CEO of the Ministry again complaining about the Minister’s decision to grant the allotment to Keio.
  9. On 4 June 2019, these proceedings were commenced.

Submissions

  1. On behalf of the plaintiff, Mr Tu'utafaiva submitted, in summary:
  2. On behalf of Keio, Mr Edwards submitted, in summary:
  3. On behalf of the Minister, Mr Sisifa submitted, in summary:

Issues

  1. Mr Tu'utafaiva opened his case by describing the main issue for determination as being whether the Minister granted the tax allotment to the plaintiff. For if he did, he was not permitted by law to subsequently cancel that grant and therefore the grant and registration in favour of Keio must be invalid and should be cancelled.
  2. It is well settled that, here, Keio is entitled to rely on the presumption that his registration is final until it has been established that it came about as a result of an error of law (i.e., contrary to the Act), or as a result of fraud, mistbreach of the prhe principles of natural justice or of a promise made by the Minister or the tofi’a holder: e.g., Havea’i̵’afitu & Ors [1974-1980] To. L.R. 55; Koloamatangi v Koloamatangi [2003] Tonga LR 131; Finao'unga [200; [2003] TOSC 38;&Skei>Skeen v Sovaleni [20onga LR Tafa v Va v Viau&[200;[2006] Tonga LR 125; 0;&#/i> [2007] LR 15; Maka>Makaui v Havelu<20O [20OLC 3Finaunauu [2TOLC 5.
  3. In to sd in laim heim here, at least for the cancellation of n of Keio’s registration, the plaintlaintiff bears the onus of establishing any one or more of those vitiating grounds. His pleaded case is that the allotment was not available for grant to Keio because the Minister had already granted it to him (i.e. the grant to Keio was contrary to the Act and/or arguably a breach of a promise by the Minister, although Mr Tu'utafaiva did not put it in those terms), breach of natural justice and the Minister’s purported cancellation of the plaintiff’s grant was also an error of law.
  4. Plainly, and as Mr Tu'utafaiva emphasized, the pivotal issue for the plaintiff is whether the Minister granted him the tax allotment. If not, the plaintiff’s claim must fail. If the grant was made, a number of other cascading issues will fall to be considered.
  5. Accordingly, the issues for determination, which encapsulate the pleaded causes of action and defences, may be framed as:

Findings on disputed facts

  1. As noted at the outset, most of the evidence was uncontroversial. However, the facts that are in dispute are the result, principally, of differing accounts by Kaitu'u on the one hand and Lord Tu'ivakano and Mr Halatanu on the other.
  2. When considering that evidence, I am reminded of Paulsen LCJ’s experience in Finau v Finau [2017] TOLC 5 in which his Honour found neither Kaitu'u nor Keio to be reliable witnesses and that they held “intransigent views, gave some quite implausible evidence and both developed their evidence on their feet in certain respects”.[8]
  3. In the present case, Keio’s evidence had little, if any, bearing on the real issues in dispute. His pleaded defences concerning the plaintiff’s status such as being born and living in New Zealand were not pressed during the trial and Mr Edwards made no reference to them in closing submissions. Therefore, no issue arises on this occasion as to whether Keio was a reliable or credible witness nor is there any relevant contest about his evidence. For completeness, I record that I found nothing in Keio’s evidence, as far as it went, or the manner in which he gave it, to cause any concern about his reliability as a witness of truth.
  4. The same cannot be said for Kaitu'u. Generally, I found him to be a most unimpressive witness. The only consistency in his testimony was his inability and/or unwillingness to answer most questions directly or responsively. His answers were often evasive, obtuse or unclear. He was repeatedly reminded to answer the questions being asked of him, and occasionally had to be admonished for not doing so. He often defaulted instead to making self-serving statements which either did not or did not directly engage with the question asked. That was perhaps best exemplified by the following passage during his evidence:
Edwards
If you look at page 105 at the file booklet, the last paragraph of the notes that was taken at the meeting with you and Mr. Niu. That’s what he told you about your son’s application. Is that correct or false, do you recall?
Wit
I don’t recall this.
Edwards
You remember everything but you don’t remember this is that what you’re saying?
Wit
Yes I don’t recall this. This is the last meeting the only thing I was told by the Minister go and come back on the 9th of August go to Fataua and get the deed for the tax allotment because Tu’ivakano is waiving it around in the parliament. That was all, it was short. We didn’t take long in the last meeting.
Edwards
My question is simply this, he told you that he’s not going to make a decision of your son’s application. True or false?
Wit
But he did to me.
Ct
Just answer the question Mr. Finau. To the best of your recollection of the conversation at that meeting did the Minister say that he was not going to make a decision?
Wit
He made a decision he told me (interrupted by the court)
Ct
Mr. Finau please answer the question I’m asking you now. To the best of your recollection at that meeting with the Minister, did he say words to the effect that he was not going to make a decision. Yes, no or you don’t know?
Wit
He made a decision for me to come back on the 9th of August.
Ct
Are you willing to answer the question that’s been asked of you now three times?
Wit
No I don’t think so.
  1. Further, Kaitu'u either directly or indirectly accused the Minister, his staff (who were generally unspecified but included Mr Halatanu) and Lord Tu'ivakano of lying. Such serious allegations were never put to either of those witnesses by Mr Tu'utafaiva. Of the Ministry staff Kaitu'u referred to as informing him of matters favourable to his (son’s) case, such as Sione Leki, none were called to give evidence.
  2. Another example of Kaitu'u’s unreliability as a witness was his evidence that he wrote the Ministry ten letters to which he received no response. Apart from his two letters referred to in the evidence section above, no other letters by Kaitu'u to the Ministry were discovered or produced in evidence. Further, he denied receiving the letter from the Ministry CEO dated 25 November 2016.[9] However, at [13] of his brief of evidence, Kaitu'u referred to the very same letter and its contents. When challenged, he described the discrepancy as being a ‘misunderstanding’ and later that the statement in his brief about the letter was a ‘mistake’.
  3. Accordingly, where Kaitu'u’s evidence on material matters differed to that of Lord Tu'ivakano and Mr Halatanu, I have preferred the evidence of Lord Tu'ivakano and Mr Halatanu.
  4. On that basis, and on the balance of probabilities, I make the following findings of fact:
“Oh this is disgusting Tu’ivakano wrote to stop your application and don’t do anymore work for the tax allotment. Then me and him went down to the office down there and we had a meeting with Semisi Moala and Semisi said to him give the map to me because there’s nothing to do with Tu’ivakano anymore he signed it (inaudible) and Sione Leki was (inaudible) and went back with the map.”

Kaitu'u did not receive any survey map. There is no evidence from the Ministry file that a survey of the tax allotment in connection to the plaintiff’s application was ever completed. The Ministry never informed the plaintiff or Kaitu'u that it had. The plaintiff did not call Sione Leki or anyone else from the Ministry to attest otherwise.

(f) There is no evidence that a deed of grant in favour of the plaintiff was ever prepared. Mr Halatanu affirmed that it had not.[12] I reject Kaitu'u’s evidence that he was told that a deed had been prepared. I find that neither Kaitu'u nor the plaintiff were ever advised by the Ministry that a deed had been or would be prepared.
(g) The Minister never informed Kaitu'u that he had cancelled the plaintiff’s grant, if any such grant was made (discussed further below). The Minister and his staff did advise Kaitu'u that upon the estate holder’s withdrawal of consent for the plaintiff’s application, the Ministry cancelled that application and did not proceed further with it.
  1. Upon that foundation of decided facts, I now turn to the legal issues for determination.

Did the Minister grant the tax allotment to the Plaintiff?

  1. This issue calls into sharp focus the question of what constitutes the making of a grant by the Minister.
  2. In Folau v Taione [2016] TOLC 2, Paulsen LCJ observed:
“[29] It is the Minister who has the power to grant land under the Land Act. Mr. Kefu referred me to sections 7, 8, 19(2) and 34 (1) of the Land Act and to 'Ameleki v Nai [2000] Tonga LR 247 which he submitted make clear that the power to grant an allotment resides with the Minister. He rejected, correctly in my view, any suggestion that the power to make grants within a hereditary estate rests with the estate holder (Minister of Lands v Finau [2001] Tonga LR 221 at [29] and Lisiate and Anor v 'Eli and Ors [2012] Tonga LR 31, 37).”
  1. While the Minister’s power to make a grant of land is well described, it is a curious feature of the Land Act that it does not contain any provisions which expressly define the circumstances by which the Minister actually makes a grant of an allotment.
  2. The entitlement to and process for a grant of an allotment commences with s.43 of the Act which provides:

43 Tongan su may apply for allr allotment

(1) Every mangan subject by biry birth of 16 years of age not being in possession of a tax or town allo shall be entitled to the grant of a tax or town allotment ment or if in possession of neither to the grant of a tax and town allotment.

(2) The grhall be subject to thto the provisions of this Act and shall be made in accordance with the following rules —

(a) the applicant shall ma appl application on the prescribed form to the Minister;

(b) the applicant shroduce for for the inspection of the Minister his birth certificate or some other proof ofdate of his birth;

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(c) the applicant shall pay res prescribed fees.


  1. It will be noted that while s.43(2) is premised on the requiremeor the making of a grant, tnt, the operative provisions only in fact relate to the requirements on the part of an applicant for making a complete application. It says nothing of the process to be followed by the Minister after a complete application has been lodged and the relevant fees paid, or the circumstances in which the Minister makes a grant.
  2. In Mataele v Manu [2020] TOLC 8 at [70], Niu J considered that for a valid grant to be made, the following must be satisfied:
“(a) The applicant must be a Tongan subject by birth.
(b) He must be male and 16 years of age or over.
(c) He must have no allotment of the same kind he applies for.
(d) He must apply on the prescribed form.
(e) The form must have the signed consent of the estate holder, if it is not Crown land.
(f) The land applied for must be available to be granted, that is, it is not occupied or farmed by another person.
(g) The survey fee is paid, and
(h) The Minister has consented to the grant to be made.”
  1. In Va'enuku v Va'enuku [2019] TOLC 1 at [20], another case in which Lord Tu'ivakano complained of an applicant lying to him, Niu J made a similar statement in respect of (e) above, that the “form requires the estate holder to sign” the statement of consent to the application, namely:
“I hereby consent to the grant of the allotment as described above and declare that there is no impediment to prejudice this grant.”
  1. In Mataele, his Honour continued that the requirements in [70]:
“[71] ... are all and only requirements which the Courts have held that are required by the Land Act to be satisfied and a valid grant is held to have been made: Folau v Taione & Others (2016) LA6/2015 (18 April 2016) Land Court.”
  1. Similarly, in Kuli v Maile [2019] TOLC 3 at [8], Niu J opined:
“The law is that an allotment is lawfully granted and the holder becomes the lawful holder of it from the moment the Minister of Lands makes his decision to grant it to the holder: [2012] Tonga LR 31.&#82i>
  1. With respect to his Honour, I incli a different view in two respects.
  2. Firstly, I am unable to find any requirement in the Act that a valid application for an allotment from a hereditary estate must include the signed consent of the estate holder. While s.43(2) requires the application to be made in the prescribed form, and that form[13] contains provision for an estate holder to agree to the grant and declare that there is no impediment to prejudice the grant, neither the form itself nor any other relevant provision of the Act requires the estate holder’s approval before an application may be treated as complete or valid. On the contrary, s.34 of the Act is testament to the fact that it is the Minister who grants allotments, not estate holders. By that provision and the proviso to s.8, the Minister is required to consult with an estate holder and hear any objections to the grant. But where they fail to agree, the Minister may nevertheless grant the tax allotment. Such grant may be reviewed by the Court within three months of the making thereof. Accordingly, in my view, any application which is submitted to the Minister which does not contain the estate holder’s signature is neither incomplete or invalid. The Minister is required to take into account all relevant considerations in determining any application for a grant. Doubtless, the consent of an estate holder is a significant consideration, but it is ultimately for the Minister to determine what weight ought be attached to that consent. There may well be other countervailing considerations, particularly where there are competing applications for the same allotment, only one of which has the estate holder’s consent.
  3. It follows that I do not accept Mr Sisifa’s submission that once the estate holder withdrew his consent to the plaintiff’s application here, that application became incomplete and therefore invalid.
  4. Secondly, I am unable to discern from the judgments in Folau v Taione and Lisiate & anor v Eli any absolute statement of principle to the effect that an applicant becomes a lawful holder of an allotment from the moment the Minister makes his decision to grant it to the applicant. The corollary to that proposition must be that a grant is made immediately upon the Minister's decision to approve an application. Neither decision, nor any other of which I am aware, is authority for that proposition. The difficulties with any such hard and fast rule may be simply demonstrated. For instance, could it seriously be suggested that upon the Minister mentally deciding to approve an application, but before he reduced his decision to writing or communicated it to any person, that he had granted the allotment to that applicant? Similarly, if the Minister does reduce his decision to approve to writing and includes a direction to his staff for a survey to be conducted and thereafter a deed of grant to be prepared, but that decision is not communicated to the applicant in any way, could it also be said that the Minister has made a grant in favour of the applicant and upon which the applicant may derive certain rights in respect of the allotment? In my view, and for reasons discussed further below, both questions ought be answered in the negative.
  5. In Lisiate, the Court of Appeal agreed that each case must be decided on its own facts.[14] In the absence of direct proof of a grant, it is for the Court to draw the proper inference from the established facts.[15]
  6. The possible facts, events or indicia of a grant may be viewed along a spectrum of the process within the Ministry. At one end, there is an application. At the other end, registration of a deed of grant. In between, other acts have been considered in the authorities such as payment of survey fees, Savingrams signed by the Minister directing personnel to arrange surveys of the subject allotment and thereafter for a deed of grant to be prepared. Often, the Minister’s signature on such Savingrams is the first evidence of his approval of an application. There is also the preparation of a deed of grant followed by the second written evidence of the Minister making a grant when he signs the deed. Finally, as noted, there is registration of the deed, which completes or perfects so-called ‘ownership’ of, or title to, an allotment: Folau Tokotaha v Deputy Minister of Lands and Sani Vea [1923 – 1962] Tonga LR (Vol II) 159; Vaka’uta v Vaka’uta and Minister of Lands [1974 – 1980] Tonga LR 26;[16] Havili v Tonga Development Bank [2008] Tonga LR 279.
  7. However, the same authorities make clear that registration is not determinative of whether the Minister has made a grant earlier in the process; it is but proof of the grant: Kuli v Maile [2019] TOCA 23. In Tapealava v Minister of Lands [2015] TOLC 7 at [18], [19], Paulsen LCJ noted that:
“The Land Act does not make registration the test of ownership and the intention of the Act is that registration is a method of proof of ownership and nothing more.”[17]
  1. His Honour also referred to Lisiate v Eli, ibid, in which the Court of Appeal cited with apparent approval the Privy Council’s reference to the observations of Hunter J in Fifita Manakotou v Vaha'i (Noble) Vol II Tonga LR 121 at 123 that:[18]
"Although registration is very strong evidence of ownership I can find nothing in the Act to say that a person claiming an allotment must be able to show he is registered as the holder of that allotment. Nowhere does the Act make registration the test of ownership. The Intention of the Act is that registration will be a method of proof, nothing more. This was the view taken by the Privy Council in Tu'i'afitu and Anor v Mesui Moala (Privy Council 25.1.57). The Privy Council in the course of their judgment said: It was one of the main contentions of the Appellant both in the Land Court and on the hearing of this appeal that the Respondent was not entitled to succeed in his claim because of his failure to become registered as the holder of these allotments. The learned trial judge held that the Respondent had taken all steps required by the Land Act Section 76 and whit t regisregistration is evidence of ownership it is not always necessary to prove registration before ownership can be established. With this statementhe laagreei>
  1. For those reasons, Mr Edwards’ submission, to the effect, that ss 120 and 121 of the Act provide that a grant only occurs when a deed of grant is prepared, delivered and registered as provided therein, cannot be accepted. As Paulsen LCJ stated in Tapealava v Minister of Lands, ibid, “sections 120 and 121 are procedural only”.[19 ]
  2. Moving back along the figurative spectrum referred to above from registration, it has also been held to similar effect that a deed of grant when issued later is also only evidence of an earlier grant: [1956] Vol II Tonga LR 104.
  3. It would seem clear therefore tn ter timing, at leastleast, a grant is most likely to occur at some point in the process betweeetween receipt of an application and the issuing of a deed of grant. Provisions within the Act which support that interpretation include s.44, which deals with persons who refuse to accept land granted to them by the Minister (which presumably occurs before any deed of grant is issued or registered) and s.78 which requires the Minister to make an annual return of all grants of tax allotment in Tongatapu and which is to include the date of the grant in each case (as opposed to the date of any deed issued or date of registration of deeds of grant).
  4. In Tapealava, the evidence of a grant included the applicant being given a receipt confirming his registration of the allotments in question there, his name was entered in the register for the allotments and the lack of a deed of grant was adequately explained.
  5. In Lisiate, the Court was prepared to infer that a grant of a tax allotment had been made based on evidence of the applicant’s name in the register of tax allotments along with an uncompleted deed in the register of deeds, which was strongly suggestive that a deed may have issued but subsequently lost. Further, when the applicant did apply for a deed of grant many years later, it was issued to him.
  6. In Manu v 'Aholelei [2015] TOLC 5, Paulsen LCJ found that a grant had been made in circumstances where the relevant person was to be given the land by the Minister in substitution for other land lost in a Court case, that person had moved on to the land and built a shelter there and raised his family on the land, he had made an application for the grant of the land which satisfied the requirements of Act, his name had been written indelibly on the Ministry of Lands survey plan and a deed of grant had been prepared in his name although never signed by the Minister.
  7. In Folau v Taione [2016] TOLC 2, there was no evidence from the register of town allotments or by entry on a survey plan nor evidence that a deed of grant was ever prepared in favour of the Plaintiff there. However, the plaintiff had taken all steps required of him by the Act to obtain a grant and the Minister had done everything that he had to do save for signing the deed of grant once it was prepared (Tu'i'afitu and Anor v Mesui Moala [1956] Vol II Tonga LR 155). The Minister required payment of the survey fee, which at the relevant time, was only payable once a direction to that effect had been issued by the Minister. According to Paulsen LCJ, that indicated the Minister’s intention to grant the allotment to the plaintiff. The terms of the Minister's savingram - "This allotment has been granted to this man on 8.1.1996" - were unambiguous and were held to have reflected that a grant had been made. It was also clear that the Minister expected that registration would follow as a matter of course once the survey was completed as he stated "Once the work is ready, please draw up the map so it can be registered." There was no suggestion of further consideration being given to the application before a grant would be made and there was no competing application for the allotment which might require the Minister to consider the comparative merits of the applications before making his decision. It was also held significant that the plaintiff took possession of the allotment in the sense that he took responsibility for it and ensured that it was maintained. Paulsen LCJ also referred to “important evidence” from Mr. Fataua Halatanu in that case that had the survey of the land been carried out as the Minister directed, the land would have been registered in the name of the plaintiff. On the totality of that evidence, his Honour held that the only proper inference was that the Minister granted the allotment to the plaintiff on the day he issued his savingram.
  8. By comparison, in the present case, the relevant evidence is as follows:
    • (a) The plaintiff did all he could, and was required to, do under the Act to submit an application for the tax allotment.
    • (b) Payment of the survey fees could not have been indicative of any approval by the Minister because, according to Mr Halatanu, the procedure at that time was for survey fees to be paid when submitting the application. That occurred approximately one month before the Minister’s savingram was issued.
    • (c) In terms of the Ministry’s procedure, the only documents the Minister usually signs are the savingram and the deed of grant. But there was another. During his evidence at trial, Mr Halatanu had with him the Ministry file for this matter. While he was in the witness box, I noticed him looking through a bundle of documents stapled together. One of them was yellow in colour and appeared to be different in format to those that had been discovered by the Minister and included in the court book. When he was asked about those documents, Mr Halatanu explained that they included Kaitu'u’s original letter to Lord Tu'ivakano of 5 October 2011, the plaintiff’s application, the Minister’s Savingram dated 16 April 2012 with the 26 November 2015 handwritten note on it, but also a basic map of the area in question (not a survey) and, importantly, a Ministry document entitled “Brief to the Hon. Minister of Lands” in relation to the plaintiff’s application. The briefing document had not been discovered or included in the court book.[20] Mr Halatanu explained that the briefing paper and the draft savingram are usually given to the Minister at the same time. In the checklist of 12 items or details on the briefing paper:
      • (i) title search, due diligence and site inspection were all marked “ok”;
      • (ii) the comments included that “Applicant’s father is Solomone Finau’s younger brother...’;
      • (iii) the author (whose signature only was not identified during the evidence) recommended that the Plaintiff’s application be approved. The recommendation was dated 2 April 2012. Another officer (again, by signature only) checked the document on 4 April 2012; and
      • (iv) the Minister directed that the application be approved (by marking one of a number of check boxes) and signed it.
    • (d) The Minister’s savingram dated 16 April 2012, did not contain the same express words of grant as those used in Folau v Taione. It did contain the usual directions for a survey to be undertaken, and thereafter, for a deed of grant to be prepared ‘to complete the registration’. In his evidence, Mr Halatanu confirmed that a Savingram of that kind is usually drafted by Ministry officers and presented to the Minister with the briefing paper referred to above. Further, the Savingram is intended to record the reasons for the Minister’s agreement to or approval of the application if he goes on to sign it.[21] In this case, the only reason stated in the Savingram by which the Minister apparently approved the application was that the allotment ‘had been granted’ to the plaintiff by the estate holder.
    • (e) During his cross-examination, Mr Halatanu agreed that on 16 April 2012, the Minister approved the plaintiff’s application for the allotment to be granted to him. [22]
    • (f) There was no indication that any further consideration by the Minister was required prior to any deed of grant being prepared and signed.
    • (g) Despite some three years then passing, and the fees for same having been paid, the survey was never completed for the plaintiff’s application. The reasons for that delay, when compared to the period of only some five months from Keio’s application to registration, were never clearly explained in evidence.[23]
    • (h) In that time:
      • (i) the estate holder withdrew his consent for the plaintiff’s application; and
      • (ii) a competing application by Keio, with the estate holder’s consent, was lodged.
    • (i) A deed of grant in favour of the plaintiff was never prepared or presented to the Minister for his signature.
    • (j) At some point after the plaintiff’s application was submitted, Kaitu'u and his farming group grew crops on the tax allotment. After he withdrew his consent, Lord Tu'ivakano demanded that Kaitu'u and the group take their crops and vacate the allotment. I do not consider this evidence to be indicative of a grant for two reasons. Firstly, Kaitu'u is not the plaintiff and there is no evidence that the plaintiff occupied or worked the allotment on the basis that he believed it had been granted to him. Secondly, and consistent with my findings of fact above, there is no evidence that Kaitu'u farmed the allotment as a result of, or in reliance upon, any communication by the Ministry that the allotment had been granted to his son.
  9. That last observation raises a further aspect on this issue, which so far as my research has revealed, has not previously been considered in any detail.
  10. A common feature of cases of this kind is that the applicant or plaintiff will usually seek to enforce claimed legal rights and to have the Court declare that he or she is the lawful holder of an allotment, notwithstanding that he or she is not registered as such, on the basis of an earlier grant having been made by the Minister in that person’s favour. In order to assert such rights, the putative plaintiff must have knowledge of the alleged grant. That begs the rhetorical question: how does that person know that a grant was made?
  11. Two possibilities emerge – either:
    • (a) the Ministry informed the person that the grant has been made or by some other representation induces the person to believe that he or she has a lawful entitlement to the allotment and to use it as such; or
    • (b) no such communication was made, in which case, the plaintiff, after commencing legal proceedings, uses the discovery process in the hope of finding documents, such as the Minister’s savingram here, to support a claim that a grant was made.
  12. One need only examine the Statement of Claim in this case to see how those possibilities have been deployed here. Nowhere has the plaintiff pleaded the existence of or reliance upon the Minister’s savingram. From that, it is implicit that as at the date of commencing these proceedings, neither the plaintiff nor his father were aware of the savingram. Instead, the plaintiff pleads as the bases for a grant having been made that his father was repeatedly told by the Minister and his staff to collect the deed of grant,[24] that the Minister told Kaitu'u at their meetings that the tax allotment had been granted to the plaintiff,[25] and that the allotment was granted either prior to or upon the survey fees being paid on 13 March 2012.[26] For the reasons stated earlier, the first two of those has been rejected on the evidence and the third is unsustainable as a matter of law.
  13. In my view, in order to complete the making a grant of land as contemplated by the Act, the Minister must, by some effective means, communicate his decision to approve an application to the applicant. The clearest demonstration of that will be the issuing of a signed deed of grant to the applicant. However, that does not preclude an earlier communication of approval. If that is not the case, then, as posited above, the making of a grant amounts to no more than the Minister approving an application with the usual directions for a survey to be conducted and a deed of grant to be prepared. That administrative decision making process, from the Minister’s mental determination to approve, through to him signing documents such as the briefing paper and savingram, may all occur internally within the Ministry and without any communication of same to the applicant.
  14. There may then be circumstances which are brought to the Minister’s attention, before any communication of approval has been made to the applicant, which require the Minister to review the decision and possibly refuse the application. But, as will be discussed further in the next issue, if he is already deemed to have made the grant, the Minister may be unable to act on that new information, in which case, a miscarriage of his discretion may result.
  15. To illustrate, in the vast majority of cases, the results of the survey may have little bearing on the Minister’s earlier decision to approve an application. But what if it did? What if the survey work revealed an impediment to the grant? Could it seriously be suggested that it was Parliament’s intention that before the Minister communicated his approval to an applicant, he could not reverse his decision because to do so would amount to unlawfully cancelling the earlier grant? In my view, that question should be answered in the negative, not on the issue of cancellation of a grant, but on whether there was a grant.
  16. On that analysis, it must follow in my opinion, that absent any communication of approval to the applicant, the Minister should not be taken to have made a grant of land merely upon his decision to approve the application as recorded in the briefing paper and savingram which otherwise directs further steps to be undertaken such as the survey and preparation of the deed of grant.
  17. A potential vice from that approach may be, as has occurred here, that if there are lengthy delays between the lodgement of an application and the Minister’s communicated decision to grant, other competing applications may be lodged in the meantime. For some reason, Parliament has not seen fit to specify within the Act a timeframe within which the Minister is required to determine an application for a grant or re-grant of an allotment. As such, if during such long delays, the Minister proceeds to compare the first application, which he may have internally approved, with a subsequent application which he considers to be more deserving, the result is almost invariably litigation. In my view, that is an unsatisfactory product of the operation of the Act. Such delays will rarely serve any good purpose and will only engender disputation. If the delays cannot be prevented, greater certainty about the timing and circumstances constituting a grant by the Minister is likely to be beneficial to all users and administrators of the Kingdom’s land law system. Therefore, I recommend that consideration be given to amending the Act to define the act/s or other circumstances constituting a grant by the Minister.
  18. Ultimately, as this aspect of this issue was not ventilated at trial, and counsel did not address it in submissions, it is inappropriate and arguably unnecessary for me to express any firm views on the subject or to determine this issue by reference to such views.
  19. I am thus left to determine the issue in accordance with the universal edict stated by the Court of Appeal, namely, that each case is to be determined on its own facts.
  20. Having regard to the relevant evidence, my findings on the disputed facts apropos this issue, the comparative analysis of the evidence in paragraph 89 and the observations in paragraphs 90 to 93 above, I have come to the view, consistent with the submissions made on behalf of both defendants, that the Minister did not make a grant of the tax allotment to the plaintiff. I am not satisfied that the Minister’s internal approval of the plaintiff’s application in 2012, which was never communicated to him or his father, is sufficient to clothe the plaintiff with legal rights sufficient to challenge Keio’s registration.
  21. That finding is sufficient to dispose of the action. However, in the event that the above findings may be considered elsewhere as being erroneous, I will now proceed to consider the other issues on the alternative basis that a grant was made.

Did the Minister cancel any grant to the Plaintiff?

  1. In his savingram dated 16 May 2016, the Minister directed that item 23104 (the case number allocated to the plaintiff’s application as shown on the Minister’s savingram dated 16 April 2012) be terminated and that a deed of grant be prepared for Keio.
  2. Mr Halatanu agreed in evidence that the second savingram had the effect of cancelling the first which, in this alternative analysis, amounted to a grant in favour of the plaintiff.
  3. I accept therefore, that if by his first savingram, the Minister did grant the tax allotment in favour of the plaintiff, then by his second savingram, the Minister cancelled that grant. The other more subtle distinction contended for by Mr Sisifa, that the Minister only terminated the plaintiff’s application, was based on a finding of no grant. In this alternative analysis, there can be no other sensible interpretation than that the effect of terminating the plaintiff’s application was also to cancel his grant.

Did the Minister afford the Plaintiff natural justice?

  1. Natural justice requires that a person, whose rights, interests or legitimate expectations are imperilled by an official's consideration of some other person's application, will generally be entitled to a fair opportunity to be heard before a decision adverse to him is made: Folau v Taione [2016] TOLC 2 at [56].[27]
  2. Although one of the plaintiff’s pleaded causes of action was a denial of natural justice, it was not pressed during the trial, and for good reason.
  3. Firstly, at no stage did the plaintiff ever seek to be heard before the Minister made his decision not to proceed with the plaintiff’s application and to instead grant the tax allotment to Keio. In fact, the plaintiff never communicated with the Ministry at all. That of course was because Kaitu'u was at all material times driving the plaintiff’s application while he has been living in New Zealand, relatively oblivious to what was going on here in relation to his application save for whatever his father may have reported to him from time to time. In that context, there is no basis for the pleaded complaint and it does not arise.
  4. Secondly, and insofar as Kaitu'u might be regarded as the plaintiff’s agent or representative (although not pleaded as such), I am satisfied on the evidence of the various meetings and correspondence between the Ministry and Kaitu'u, that he was afforded a reasonable opportunity to be heard.
  5. As noted above, it is also telling that at no time during any of his communications with the Ministry did Kaitu'u attempt to ‘be heard’ as it were by addressing or refuting any of the stated reasons for the estate holder’s withdrawal of consent. It was only during cross-examination at trial that he sought to deny the accuracy of those reasons.
  6. Accordingly, the plaintiff’s claim of a denial of natural justice is rejected.

Was the Minister lawfully entitled to cancel the Plaintiff’s grant?

  1. It was common ground between Mr Tu'utafaiva and Mr Sisifa that the Minister has no power to cancel a grant once made. In Palu v Sete [2016] TOCA 8; [2016] Tonga LR 158, a similar concession was made on behalf of the Minister. There, the Court of Appeal opined:
“[13] Section 19(1) of the Act makes the Minister the representative of the Crown in all matters concerning land in the Kingdom. As the Lord President said, it is fundamental that in purporting to exercise a statutory power the Minister must act within the limits of the power conferred upon him.
[14] The Minister is given by the Act an express general power to grant allotments to Tongan subjects duly entitled thereto by law (s.19(2)). His powers are administrative. In making grants of land he performs an administrative function. He also has some express powers or obligations to cancel existing grants exercisable, or required to be exercised, only in particular and limited circumstances. Thus where a new allotment is granted on the removal of a holder from one district to another, s.73 requires the Minister to cancel the deed of grant previously held by that person. And, as occurred in Fifita v Minister of Lands (1972) 3 Tonga LR 45, where under s.49 a grant is "null and void" because of excess area the Minister is under a duty to give effect to the section.
[15] But the Minister is given no express general power to cancel a deed of grant that has not been voluntarily surrendered by the holder with Cabinet consent under s.54. That is understandable as the circumstances in which cancellation might be sought by someone other than the holder are very likely to involve a dispute concerning entitlement to the land. Resolution of such a dispute would take the Minister beyond his administrative role under the Act and might require him in some cases to adjudicate in a dispute involving his own actions or those of a predecessor. Therefore, it is only the Land Court that is empowered by the Act, under s.149(1)(b), to hear and determine all disputes, claims, and questions of title affecting any land, which s.150 authorises it to do "on the application by any person claiming to be interested or on the application of the Minister".
[16] It follows that, like the Land Court, we do not accept the submission of the appellants that the Minister must be taken, in the absence of an express power, to have an implied power to cancel a grant that he considers to have been issued unlawfully. Such an implied power, far from being suggested by what is said expressly or being necessary for the Minister to perform the functions given to him would, in our view, be inconsistent with the division of functions and powers under the Act between the Minister and the Court. If the Minister considers that a grant has been made unlawfully, and the holder, fully apprised of his rights, is unwilling to execute a surrender of it, the Minister's proper course is to apply to the Land Court for its cancellation, provided, of course, that such an action is not statute barred by s.170.”

  1. Mr Edwards took a different approach. He submitted that, prior to registration, a grant is revocable in circumstances where, as here, the estate holder was misled and that the Minister can consider any misrepresentation in deciding whether to grant or cancel an application. Mr Edwards did not cite any authority for that proposition nor did he refer to Palu v Sete.
  2. It may have been that Mr Edwards’ submission was based on the settled law that when the grant of an allotment is challenged, the Court will only intervene if, inter alia, the Minister has acted on wrong principles and that when the Minister is significantly misled or mistaken as to the true position, he will be taken to have acted on wrong principles: Makaui v Havelu [2016] Tonga LR 233.[28] However, in accordance with Palu v Sete, cancellation of any such grant is a matter for the Land Court, not the Minister.
  3. Therefore, I find that the Minister was not lawfully entitled to cancel any grant he made in favour of the plaintiff.

What is the effect on Keio’s grant and registration?

  1. In Palu v Sete, ibid, the Court of Appeal noted that if the Minister’s cancellation of the respondent’s grant there was invalid, it would follow that a grant subsequently made to the appellant would be unlawful. Transposed to the present case, that would suggest that the Minister’s unlawful cancellation of any grant made to the plaintiff would render the subsequent grant to Keio unlawful and that it should therefore be cancelled by the Court. In that event, and as discussed with counsel during closing submissions, one result may be that both the plaintiff’s and Keio’s applications would be remitted back to the Minister for further consideration.
  2. However, upon further reflection, I am not convinced that that would be an appropriate outcome in this case.
  3. In Mataele v Manu, ibid, at [77], Niu J adopted a statement from Paulsen LCJ’s primary decision in Sete v Palu & ors,[29] that the Minister does not have authority to cancel any grant “lawfully made”. The Court of Appeal directed that where the Minister considers the (first) grant to be unlawful, and the grantee will not agree to surrender it, the proper course is to apply to the Land Court for its cancellation. It is sufficiently clear from their pleadings herein that Keio and the Minister both challenge the plaintiff’s claim to be entitled to registration of the tax allotment on the basis of any prior grant by the Minister in his favour.
  4. In my view, for the unlawful cancellation of any grant to the plaintiff to have the effect of rendering the subsequent grant to Keio unlawful, and therefore liable to be set aside or cancelled, must require the plaintiff’s grant itself to be valid and enforceable. If it was, then Keio’s grant and registration should be cancelled. If it was not, then the plaintiff’s grant should cancelled by the Court and it will therefore be ineffective to vitiate Keio’s registration. That assessment should not be conducted looking back as it were from now but rather as at the time the Minister decided to terminate the plaintiff’s application and grant Keio’s.
  5. In this case, that question turns on whether the plaintiff’s grant was obtained by misrepresentation.

Was the Plaintiff’s grant obtained by misrepresentation?

  1. At paragraph 63 above, I found on the balance of probabilities that Kaitu'u represented to the estate holder that he was the heir to the tax allotment; that his older brother, Fetaliaki, had released his entitlement to the allotment for Kaitu'u and his children to claim it; and that the plaintiff lived in Lord Tu'ivakano’s estate in Matafonua. I also found that:
    • (a) those representations were untrue;
    • (b) Kaitu'u knew that they were untrue; and
    • (c) the representations were material to the estate holder’s original decision to consent to the plaintiff’s application for the tax allotment.
  2. I am mindful that the above misrepresentations were not made by the plaintiff himself but by his father. There is, however, no evidence that the plaintiff has ever sought to distance himself from his father in the latter’s dealings with the Ministry and the estate holder on this matter or that the plaintiff has ever disavowed Kaitu'u’s misrepresentations. On the contrary, the plaintiff’s only statement of position in his viva voce evidence was that he has been in on this endeavour with his father to secure the tax allotment from the beginning.
  3. I am also mindful that the misrepresentations were not made to the Minister so that it cannot be said that he was misled by the misrepresentations when deciding to make any grant in favour of the plaintiff. However, it was evident from the Minister’s first savingram that the principal (if not, sole) reason he approved the plaintiff’s application was because the estate holder had consented to it.
  4. Therefore, the focus on this enquiry is not so much who was responsible for the misrepresentations or to whom they were made, but whether any grant in favour of the plaintiff was obtained through those misrepresentations. In my view, it was.
  5. The estate holder’s consent to the plaintiff’s application was infected by the misrepresentations. In light of Lord Tu'ivakano’s unchallenged evidence about the known policy in his estates for re-grants of reverted land, I have little doubt that had he known the truth – that Kaitu'u was not the heir to the tax allotment, his older brother had not released the allotment for Kaitu'u or his family to claim and that the plaintiff either did not or certainly was not resident in Matafonua at or shortly after the time the application was submitted – he would not have consented to the plaintiff’s application. So much was demonstrated by his letter to the Minister in 2015 once he was made aware of those truths.
  6. In Va'enuku v Va'enuku, ibid, at [21] referred to the consent of an estate holder having to be “proper consent”, meaning that it must be obtained freely, without force or coercion or by fraud or because of false or misleading information given to the estate holder. In the instant case, and for the foregoing reasons, Lord Tu'ivakano’s agreement to the plaintiff’s application was not given with “proper consent”.
  7. Accordingly, I find that any grant of the tax allotment in favour of the plaintiff was obtained through misrepresentation.

What is the effect of any misrepresentation on any grant to the Plaintiff?

  1. Fraud or mistake will vitiate a grant in any case where it is established to the satisfaction of the Court on the balance of probabilities: Helu v Taufa [1995] Tonga LR 107. The degree of probability required to establish proof may vary according to the gravity of the allegation to be proved: Tukuafu v Tupoumalohi [2002] Tonga LR 268.
  2. The concept of fraud involves dishonesty or moral turpitude. Whenever a person makes a false statement which he does not actually and honestly believe to be true, for the purposes of civil liability, that statement is as fraudulent as if he had stated that which he did not know to be true, or knew or believed to be false. Proof of absence of actual and honest belief is all that is necessary to satisfy the requirements of the law: Makaui v Havelu [2016] TOLC 3.[30]
  3. The law’s abhorrence of fraud is reflected in Lord Denning’s oft-cited declaration in Lazarus Estates v Beasley [1956] 1 QB 702 at 712:[31]
“No court will allow a persokeep vantaich he has obtained by fraud. No judgmeudgment of a court, no order of a Ministerister, can, can be allowed to stand if it has been obtained by fraud. Fraud unravels everything....”
  1. The maxim that ‘fraud unravels everything’ has been qualified in more recent years. The vitiating effect of fraud is not in fact universal throughout the law. For instance, the equitable doctrine protecting bona fide&#160hasers for vaor value and without notice is an important exception. There are others: SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; Nadinic v Drinkwater [2017] NSWCA 114.
  2. However, the court must be careful not to find fraud unless it is distinctly pleaded and proved; but once it is proved, and save for the recognised exceptions, it vitiates judgments, contracts and all transactions. In that event, a court will exercise its jurisdiction in full in order, if possible, to prevent efe defendant from enjoying the benefit of his fraud.[32]
  3. In the present case, fraud raud has not been distinctly pleaded by either defendant; but misrepresentation has. In light of the findings that Kaitu'u, on behalf of the plaintiff, made false representations to the estate holder, and which he knew were false, I am satisfied that considerations analogous to the above principles on fraud are apposite.
  4. By application of the above principles, and contrary to Mr Tu'utafaiva’s submission, I am satisfied that the misrepresentations were sufficiently significant to warrant vitiating any grant that was made in favour of the plaintiff and that it should therefore be set aside or cancelled. Therefore, even though the Minister may have unlawfully cancelled any grant that was made in favour of the plaintiff, that grant was obtained through misrepresentation and was therefore invalid and unenforceable.
  5. On that basis, there is no requirement or necessity to cancel Keio’s grant and registration.

Result

  1. For the reasons stated, I find that:
    • (a) the Minister never made a grant of the tax allotment in favour of the plaintiff;
    • (b) alternatively, if he did, the plaintiff’s grant was obtained through misrepresentation and, on that basis, the Court sets it aside.
  2. By both analyses, the plaintiff’s claims fail and they are dismissed.
  3. My provisional view on costs is that the plaintiff should pay the defendants’ costs of the proceeding to be taxed in default of agreement. However, any party who, if so advised, wishes to apply for a different costs order, including any non-party costs order, is to file submissions by 15 January 2021. If no submissions are filed by that date, my provisional order on costs will become final.

NUKU’ALOFA
M. H. Whitten QC
14 December 2020
LORD CHIEF JUSTICE

[1] Deed of Grant, Book 436, Folio 16.
[2] All counsel agreed that the correct translation should have referred to Kaitu'u as the “younger brother” of Solomone [tx 40.5].
[3] Where the knowledge, intention, motive or state of mind or of body of any person is a fact in issue and the statement proves or disproves the said knowledge, intention, motive or state of mind or body.

[4] According to his Statement of Defence, whereas at [34] of his brief of evidence, he said it was since 1972.
[5] The direction appears to have mistakenly referred to the allotment as a ‘town allotment’. I have proceeded on the basis that the direction was intended to mean the tax allotment as Solomone’s town allotment had already bene registered earlier in the Plaintiff’s name. No counsel suggested otherwise.
[6] The date on the note is confusing because at the top is a date is 11 September 2016 whereas beside the signature at the bottom of the note, the date is 11 August 2016. Given the proximity to the previous three meetings, it would appear likely that it related to the events of 11 August 2016.
[7] LA 31 of 2015
[8] At [4].
[9] Cb 129, 131.
[10] Cb 66, 68.
[11] Tx 50.
[12] Tx 55.
[13] Schedule IX, Form 11.
[14] [30].
[15] Folau v Taione [2016] TOLC 2 at [31].
[16] Citing Folau Tokotaha v Deputy Minister of Lands and Sami Vea, Vol. 11 Tongan LR 159 at 160.
[17] Citing Fifita Manakotou v Vaha’i (Noble) Volume II 1923-1962 Tonga L.R. 121, Ongosia v Tu’inukuafe and Minister of Lands [1981-1988] Tonga LR 113, Mesiu Moala v Tu’I’afitu & Anor [1956] Vol II Tonga LR 104 and Lisiate and anor v ‘Eli and ors, supra, distinguishing Folau Tokotaha [1923-1962] Tonga LR 159.
[18] Page 123.
[19 ]Lisiate and anor v ‘Eli and ors at [27].
[20] The bundle of documents including the briefing paper were tendered and included as part of the court book, commencing p.146 ff.
[21] Tx 58.
[22] Tx 56.
[23] For example, at tx 34, Kaitu'u said that in 2014/15, the Registry told him his whole file had been lost. That was neither corroborated by any other evidence nor even put to Mr Halatanu. Compare Mr Halatanu at tx 56 who had no idea as to the reasons for the delay.

[24] [10], [26]
[25] [21]
[26] [17]
[27] Citing Hakeai v Minister of Lands [1996] Tonga LR 142, 143.
[28] Fosita v Tu’ineau & Ors (1#8211; 1988) To. LR 105; 105; Mateni v Pulileka & Anor [2009] To. LR 410.
[29] [2015] Tonga LR 296, upheld on appeal.
[30][31] Referred to recently by the UK Supreme court in Takhar v Gracefield Developments [2019] UKSC 13.
[32] SZFDE v Minister for Immigration and Citizenship, ibid.

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