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Sunia v Kava [2020] TOLC 2; LA 4 of 2018 (3 March 2020)

IN THE LAND COURT OF TONGA
NUKU’ALOFA REGISTRY

LA 4 of 2018

BETWEEN:


SIONE LANGI SUNIA
Plaintiff


-and-


VIVIENA KAVA
First Defendant


PAULA KAVA
Second Defendant


MINISTER OF LANDS
Third Party

JUDGMENT


BEFORE:
PRESIDENT M. H. WHITTEN QC
Assessor:
Counsel:
Mr S. Toumo’ua
Mrs P. Tupou for the Plaintiff
Mr W.C. Edwards SC for the First and Second Defendants
Mr S. Sisifa SG for the Third Party
Dates of hearing:
3, 4 and 5 February 2020
Date of judgment:
3 March 2020


INTRODUCTION

  1. The Plaintiff (“Sione”) was born in Hawaii. He lives with his parents in Maui, Hawaii, where he works in construction.
  2. On 26 February 2016, Sione was registered as holder of a tax allotment known as “Siatanu” situated at Ha’atafu in Tongatapu. There is a house on the land which was built by his parents, Kepueli and Lata Sunia.
  3. On 6 December 2019, the second defendant, Paula Kava, passed away. The defence of this action has been maintained by his widow, the first defendant, Viviena, who is Kepueli’s elder sister. Their father’s tax allotment is situated next to the subject land.
  4. For approximately the past twenty years, the Defendants and their children have lived and grown crops on the subject land pursuant to the permission of Kepueli. In 2014, he asked them to vacate the property in order for his married daughters to live there. Initially, the Defendants agreed. Later, however, after learning that Kepueli was at all material times a US citizen, they refused to leave.
  5. Therefore, Sione seeks an order for eviction of the Defendants from the allotment and nominal damages for trespass.
  6. The Defendants deny the claim and seek an order that Sione’s registration be cancelled.
  7. It will be seen that the full legal effects of Kepueli’s change of citizenship lie at the heart of this case and its determination.

FACTS

  1. The Court heard evidence from Sione, Kepueli, Lata and Sesika Burlington for the Plaintiff; Viviena; and Semisi Moala, a senior land registration officer at the Ministry of Lands and Survey. All spoke to a number of documents tendered as the trial bundle. There were few differences in the evidence of the main protagonists, and of those, even fewer have any material bearing on the outcome.
  2. From that largely uncontroversial evidence, the following facts may be distilled.
  3. ‘Siatanu’ was originally registered to Sunia Langi in 1921.
  4. In 1941, the allotment was registered to ‘Aminiasi Taufa (a.k.a ‘Aminiasi Langi). ‘Aminiasi was the younger brother of the father of Kepueli and Viviena (i.e. their uncle).
  5. Kepueli was born in Tonga on 21 November 1960. In 1976, he migrated to Hawaii. On 5 April 1978, Kepueli married Sheryl Hughey in Honolulu. On 30 March 1979, they had a son, James Robert Sunia. On 25 September 1979, Kepueli and Sheryl were divorced.
  6. On 22 January 1981, Kepueli married Lata.
  7. On 14 March 1985, Kepueli was naturalised as a citizen of the United States of America.
  8. On 5 October 1986, Sione was born in Honolulu.
  9. ‘Aminiasi was unmarried and had no children. Kepueli gave evidence that throughout his village, he was known as ‘Aminiasi’s adopted son. He said he always believed he would eventually inherit his uncle's land. In the early 1990s, his father and ‘Aminiasi agreed that Kepueli would mark the land as his by building a house on it.
  10. In or about 1991, Kepueli and his family came to Tonga and started building their house on the land. He said he intended the house to be used by himself and his family to return to Tonga to retire one day if they wished.
  11. On 6 December 1995, ‘Aminiasi wrote to the then Minister of Lands advising that he wished to surrender his tax allotment to Kepueli, whom he described as his ‘son’. No action in terms of claim or registration ever eventuated as a result of that letter. Mr Moala gave evidence that there was in fact no such letter on the Ministry file.
  12. According to Viviena, in 1997, Kepueli told the Defendants to go and live on the allotment. They did and have lived and grown crops there since. She also gave evidence, largely unchallenged, that they carried out improvements to the house including painting, roof repairs, installing a concrete water tank and building a bathroom. According to Kepueli, it was around 2001 when he was asked whether he would consider allowing the Defendants to move into the house as they needed somewhere to live. He said that as Viviena was his sister, he had no hesitation in allowing her and her family to move into the house in their time of need. He also gave evidence that in 1998, one of his sisters and her daughter and son-in-law moved into the house on the allotment. Viviena said that prior to her and her family moving in, the house had been occupied by Tilisesi and Nalesoni Leka. It is unnecessary to seek to resolve these discrepancies in the evidence. It is sufficient to proceed on the common basis that, upon the permission of Kepueli, the Defendants have lived on the allotment for the past approximately 20 years.
  13. On 27 June 1998, ‘Aminiasi became ill and passed away.
  14. On 14 August 1998, Kepueli applied for a grant of the allotment. His application included a declaration that he was a Tongan subject. In evidence, he said he did not realise the inconsistency between that statement in the printed form and his actual U.S. nationality at that time.
  15. Enter Tevita Mataele Langi (“Tevita”). Tevita was the son of Kepueli’s eldest brother and, therefore, Kepueli’s nephew.
  16. On 20 October 1998, Tevita claimed the allotment as ‘Aminiasi’s heir.
  17. Although this part of the evidence was unclear, it appears that on 31 November 1999, the then Minister of Lands approved the transfer of the allotment to Tevita. Mr Moala gave evidence that the Ministry file only showed that an undated affidavit was submitted by Tevita to being the heir. That is not consistent with the events which followed, including, in particular, the agreement to cancel Tevita’s ‘transfer’. Mr Moala also said he did not have the entire file with him when he gave evidence.
  18. Around that time, Kepueli learned that Tevita had lodged a claim on the land as ‘Aminiasi’s heir. Kepueli commenced an action against Tevita challenging his claim. The case was adjourned, and the parties attended upon the Minister of Lands to attempt to reconcile. Kepueli’s evidence was that he and Tevita agreed that Tevita’s registration was to be cancelled and the land registered in Kepueli's name for two reasons. Firstly, Tevita already held a tax allotment elsewhere. Secondly, it was apparently agreed that Tevita was not ‘Aminiasi’s heir as Kepueli’s father (Viliami), being ‘Aminiasi’s elder brother, was still alive.
  19. The then Minister approved the grant to Kepueli and, on 26 May 2003, he issued a Savingram to the Secretary of Lands & Survey in which he directed that a deed of grant of the tax allotment be prepared in the name of Kepueli. He recorded the history of the land and the agreement reached between Kepueli and Tevita in the following terms:
“This allotment is number 19 block 84/86 with an area 5a or 21.4p. This allotment was registered by ‘Aminiasi Taufa a.k.a ‘Aminiasi Langi on 26.02.1941 and called SIATANU – D/G 258/22. ‘Aminiasi Taufa Langi passed away on 27/06/1988 [sic – cf 1998] and Tevita Mataele Langi sworn [sic] an affidavit as heir on No 1188/98 dated 20/10/98 and also his application for transfer on Book of Resolution No 46/188. So Minister of Lands Tu'i’afitu approved the same on 31/11/1999 to transfer the tax allotment to Tevita M Langi and paid transfer fee on 1/12/1999.
However, it was scheduled for land case in this allotment between Kepueli Sunia, Plaintiff and Tevita M Langi, Defendant. Therefore it was adjourned so that they would come to the Minister for Lands for reconciliation. Both parties have agreed to cancel the transfer of Tevita M Langi and Kepueli Sunia shall re-apply as Tevita M Langi is not the rightful heir as Viliami Tangifetaua a.k.a Fata Ki he Hau Sunia, the eldest brother of the deceased, ‘Aminiasi Taufa is still alive.
So I accepted the reconciliation on 9.04.2003 to cancel the transfer registration to Tevita M Langi and I have granted the tax allotment to Kepueli Sunia on 19.05.2003 as I signed his application. He already paid his survey fee under receipt No 50621 on 9.04.2003 - $70.00. When work is completed then bring for registration then change Kepueli Sunia as lessor on lease No 4572 as part of the allotment – IAIR 40P which was leased by Papiloa Foliaki.”
  1. Kepueli gave evidence tat as far as he understood it, the land was registered in his name in 2003. It transpires that was not in fact the case.
  2. At this stage, Kepueli had not told anyone that in 1985, he had renounced his Tongan citizenship and been naturalised as a U.S. citizen.
  3. Shortly after his grant, Kepueli was informed by the Tonga Development Bank that his father and uncle had taken out a loan of over $30,000 and had pledged the allotment as security. He was told that if the loan was not repaid, he would lose his home. Over time, he and Lata worked in Hawaii to repay the loan in full.
  4. Around 2005, Kepueli visited Tonga. He observed that the Defendants were using the land to earn an income. They told him that they were growing cassava, taro and other crops for export. During their occupation, they maintained the house and surrounds such as replacing part of the roof and made additions to it such as constructing a bathroom and concrete water tank. There was some dispute in the evidence about the extent of that work, including whether the Defendants had replaced the roof of the house or only part of it. For present purposes, nothing turns on that.
  5. In 2013, Kepueli was informed that the Defendants were trying to claim the land for their son who was named after him.
  6. In June 2014, Kepueli and Lata again travelled to Tonga and on 24 June 2014 they went to the property and had dinner with the Defendants. Kepueli thanked them for looking after the property and asked them to leave to allow Kepueli and Lata to renovate the house. He explained that their daughter was getting married and they wanted her and her husband to have a place to move into after their wedding. The Defendants agreed to move out by 31 July 2014 because they had a house at Masilamea to return to. In her evidence, Viviena denied that there was a house at Masilamea. In any event, shortly after, the Defendants started moving their belongings out of the house.
  7. Around that time, Kepueli visited the Ministry of Lands to enquire about his registration. He was told by his cousin, ‘Ana, who worked there that the registration was at its final stages and all that remained was for the surveyors to mark and peg the boundaries. He authorised Steve and Sesika Burling to have access to and take care of the land and to receive any documents in relation to the registration once finalised. Kepueli and Lata then returned to Hawaii under the impression that everything was in order.
  8. In August that year, Sesika called Kepueli and informed him that when she and Steve went to the property to check on the land, they were confronted by Paula Kava who told them that Kepueli had no right to the land and that it belonged to Tevita because Kepueli had done nothing about registering the land.
  9. As a result, on 27 October 2014, Kepueli and Lata returned once again to Tonga and attended the Ministry. They spoke to a different officer who located their file. He told them that nothing had been done on the file since 2003. That officer said there was no application by Kepueli for the land on file. Kepueli produced a copy of his application which had been stamped as received by the Ministry. He was told that the Ministry would now process his application and that he could pick up the deed on 29 October.
  10. That evening, Lata attended the property. She said she had a heated conversation with the Defendants. They told her that Tevita was the true owner of the land. Lata told them to leave by 4 November 2014.
  11. On 31 October 2014, Kepueli’s then lawyer, Mr Fakahua, wrote to the Defendants demanding that they vacate the allotment and building within three days.
  12. The same day, Kepueli and Lata returned to the Ministry and were told that the registration was (still) in its final stages and that all that remained was the Minister's signature.
  13. On 3 November 2014, they again attended the Ministry and were told that the Minister was sick but that they should not worry because as soon as the Minister resumed work, he would sign the documents. The officer also told them that Tevita had been visiting the ministry all that week and was clearly told that he had no right to pursue the land as Kepueli was the legal owner.
  14. On 4 November 2014, Mr Laki Niu (as he then was), then counsel for the Defendants responded to Mr Fakahua’s demand as being ‘very unreasonable’. He wrote that for over 10 years, the Defendants had occupied and maintained the allotment, renovated the building and constructed a cement water tank because they assumed that Kepueli would give part of the allotment to their son and give them a reasonable time to prepare and construct a house to move to. During his evidence, Kepueli agreed that he had promised to give Paula’s son, his namesake, a piece of the land, but that that son was now deceased.
  15. He also stated that Paula had just discovered that Kepueli was already naturalised in America and no longer a Tongan and therefore had no legal right to the land. The Defendants refused to vacate unless Kepueli gave them an allotment to move to and enough time to construct a house on it.
  16. That same day, Kepueli and Lata went to the property to see if the Defendants had vacated. When they arrived, everything had been removed. When they walked into the house, Paula jumped out at Kepueli and yelled that their lawyer had advised them not to move off the land. Kepueli told Paula that he had no rights over the property and that he should get out of it. Paula said that they would inform their lawyer that Kepueli was an American citizen.
  17. On 6 November 2014, Kepueli received a call from the Ministry advising that the Minister had signed the deed in Kepueli’s name. After receiving the deed of grant, they again went to the Defendants to show them but, he said, there was no convincing them that he had the right to the land. The Defendants repeated that they were going to expose Kepueli as an American citizen.
  18. Kepueli then made enquiries, received legal advice and thereby discovered that because he had become an American citizen, he could not hold the land, but that his son, Sione, could as he was Tongan because Lata had retained her Tongan citizenship.
  19. As a result, on 2 October 2015, they had Sione's birth registered in Tonga and on 19 October 2015, Sione was issued with a Tongan passport.
  20. Then, on 28 October 2015, Kepueli wrote to the Minister of Lands, relevantly:
“In 2003 I had applied for this tax allotment and was registered on 6 November 2014. At this time, I had become an American citizen, most probably around 1983, but it was due to my shortfall as I had no idea that I was not entitled to register a town or tax allotment according to the laws of the land.
As it stands, I have only discovered this, this year and I am agreeable that my registration on 6 November 2014 be cancelled that my son can lodge a fresh application for it.
I enclose which this letter a copy of my American passport as evidence of my naturalisation [and], a completed application by my son and heir Sione Langi Sunia....”
  1. Apart from the above letter and Sione’s application, it does not appear that the Minister had any other information before him about the land, such as an analysis of the effects of Kepueli’s renunciation of Tongan citizenship since 1985, that the Defendants had been living on the land for approximately 20 years or that Sione held dual citizenship. Mr Moala gave evidence that there was no record on the file that a site inspection during the processing of the Plaintiff's application for the allotment. He said that the Ministry “does not strictly apply” that requirement. Mr Moala also confirmed that there was no record on the file of:
  2. On 3 November 2015, Sione issued a document authorising his uncle, Semisi ‘Apai, to act on his behalf in all matters concerning the land. He wrote that he was currently residing in Hawaii and had to travel back for work commitments. He authorised his uncle to collect his registration papers from the Ministry while he was away.
  3. A handwritten notation at the foot of Kepueli’s letter to the Minister indicates that on 4 November 2015, the Minister wrote “Please proceed as per request.”
  4. On 9 December 2015, the Minister issued a Savingram to the Secretary directing the grant in favour of Sione. The Minister recounted that Kepueli’s US citizenship meant that his registration of the allotment was “deemed null and void”, “but consenting to his son applying for this allotment”. Notes at the foot of that document indicate that it was checked on 26 February 2016 and entered on 14 March 2016.
  5. On 26 February 2016, Sione’s Deed of Grant as holder of the tax allotment was registered.
  6. On 27 November 2017, Mrs Tupou wrote to the Defendants on behalf of Sione demanding that they vacate the property within seven days.
  7. On 6 September 2018, Mr Edwards SC responded disputing the Plaintiff’s claim that he inherited the allotment pursuant to the rules of succession because, in summary:


SUBMISSIONS

Plaintiff

  1. The Plaintiff's claim relies on the presumption that his registration is final until it has bene established that it came about as a result of an error of law (i.e. contrary to the Act), fraud, mistake, breach of the principles of natural justice or of a promise made by the Minister: Skeen v Sovaleni [2005] TLR 298.
  2. There is no allegation and no evidence of fraud or of any breach of promise by the Minister.
  3. While Kepueli’s registration was a result of mistake, the Plaintiff submits that there is no evidence that his registration was the result of a mistake. He was a Tongan subject eligible to hold the tax allotment and ‘was the heir of the last holder of the land’.
  4. The Plaintiff submits that there are only two possibilities in relation to the title to the land.
  5. The first is that Kepueli was in fact the holder by virtue of his grant in 2003 until cancellation on 9 December 2015 given his registration was not challenged and/or set aside until he volunteered cancellation himself. The Plaintiff says that if that be accepted, then as he is Kepueli’s ‘rightful heir', he was entitled to the grant.
  6. The second possibility submitted by the Plaintiff is that title reverted to the Crown. Therefore, the land was available to be granted to him as no heir had lodged a claim and therefore his application was the only one before the Minister. The information before the Minister at the time would not have alerted him to any other interest in the land. Therefore, the Defendants have not been able to show any evidence that there was a mistake in the granting of the land to the Plaintiff.
  7. In relation to any breach of the principles of natural justice, the Plaintiff submits that the grant made in his favour was made under s.88 of the Act which has been held not to require as a precondition that the land is "available" as is the case of grants pursuant to s.50. Therefore, the Minister was not required to consult the Defendants: Finau v Minister of Lands & Heimuli [2012] TOCA 9.
  8. The Plaintiff submits that even if the Minister was required to carry out enquiries prior to granting the land to him, he would not have found reasonable legal grounds not to grant the allotment to the Plaintiff as he did. The Defendant did not deny that she has been requested to remove from the land by her brother, Kepueli, and later, the Plaintiff. It was submitted that the Defendants were therefore trespassing and were unlawfully occupying the land as it was not theirs and they did not have a license to be on it.
  9. Further, the Plaintiff points to the fact that the Minister's decision in 2003 was open to judicial review at the time and that the Defendants took no action against that decision, nor have they made a claim on the land since.
  10. He also relies on the Defendant's own evidence that she was on the land by permission granted by Kepueli and that she never thought about lodging an application for the land. That, the Plaintiff submits, was consistent with her agreement to vacate the land when Kepueli requested that she do so. The Plaintiff contends that the evidence is therefore contrary to the pleaded allegation that the Defendants should have been consulted prior to registration in the Plaintiff's name.
  11. Further, the Plaintiff submits that even if the Minister had carried out enquiries, he would have found that the house on the land belonged to Kepueli, that the Defendant and her family were occupying it with his permission and that he had requested them to leave, without success. In short, the Minister would have found them to be squatters whether the land had reverted to the Crown or was held by Kepueli (by virtue of his grant). The Defendants were without legal interest in the land and therefore not entitled to be consulted before the grant: Skeen, ibid.
  12. The Plaintiff joins with the Minister's contention that, in the circumstances of this case, the Minister did not owe a duty to consider whether the land was available because:

Defendant

  1. By their pleaded defence, the Defendants contended that the Plaintiff is not entitled to be registered as holder of the allotment because, in summary:
  2. In his oral closing submissions, Mr Edwards expanded upon his clients’ pleaded position by reference to the evidence adduced during the trial. In that regard, he submitted, in summary, that:

Minister of Lands

  1. Mr Sisifa's submissions on behalf of the Minister may be summarized as follows:
  2. The Minister’s pleaded response to the third-party notice included that the Plaintiff was entitled to be granted the tax allotment for the reasons stated above, and, because the tax allotment was ‘effectively being transferred directly from the Plaintiff’s father to the Plaintiff’. The italicized proposition was not advanced in closing submissions.

CONSIDERATION

  1. The central issue for determination in this case is whether Sione’s registration was lawful. If it was, then he is entitled to an order requiring the Defendants to vacate forthwith. If his registration is to be vitiated and set aside, his claim for eviction of the Defendants and damages (even nominal) for trespass, must fail.

Presumption in favour of registration

  1. The Plaintiff relies upon the well-settled principles applicable to setting aside registration of a deed of grant. Until it is established to the contrary, the Court will presume that the register is correct. Registration is final unless it has come about as a result of an error of law (i.e. contrary to the Act) or as a result of fraud, ke, breach of the prhe principles of natural justice or of a promise made by the Minister.[1]
  2. Accordingly, the Defendants bear the onus of demonstrating that the Plaintiff’s registration is vitiated by, relevantly on the evidence in this case, error of law (i.e. contrary to the Act), mistake and/or breach of the principles of natural justice.

Defendants’ standing

  1. In Skeen v Sovaleni, ibid, Ford J said:[2]
“It is axiomatic, however, that before a Plaintiff [Defendants here] can challenge the registration of any deed of grant he [they] must have locus standi. The Court wast was not established as a forum for just any busybody...”
  1. In Finau v Finau [2017] TOLC 5, Paulsen LCJ explained[3] that a person who at the time of a grant is in actual occupation of land is entitled to challenge a grant in defence of an action to eject him.[4]
  2. As the Defendants have been in occupation of the allotment for approximately the last twenty years; and in that time, prior to Sione’s registration, have made improvements to the house and cultivated the land for crops, I find that the Defendants have standing to challenge Sione’s registration.

Basis of the Minister’s decision to grant the allotment to Sione

  1. The principles that are applicable to a challenge of a Minister’s decision to grant an allotment have been said to closely correlate to the well-recognised principles applicable to judicial review: Pekipaki v Fifita [2018] TOLC 5 at [50].
  2. However, in order to assess the Defendants’ challenge to the validity of Sione’s registration, one must first seek to understand the basis upon which the Minister approved his application.
  3. Unfortunately, as observed in previous decisions of this Court, there is a dearth of evidence available from which to understand the reasons for the Minister’s decision on the Plaintiff’s application.
  4. As Paulsen LCJ said in Pekipaki v Fifita, supra:
“[54] ... One of the difficulties that the Land Court regularly faces in making such an assessment is that it is not the Minister’s practice to give written reasons for his decisions nor does the Minister give evidence with detail of his decision making process, the facts that he relied upon or the reasons supporting his decision. This is unfortunate and out of step with established principles that decision makers have a duty to disclose such matters so as to facilitate the Court’s function to do justice between parties.
[55] This Court is often left to identify the facts relied upon by the Minister and the reasons for his decisions inferentially from very limited evidence. Whatever may have been the practice in the past I consider that at the very least decisions of the Minister affecting people’s right to hold land should be fully recorded in writing in the interests of transparency and candor and to aid the Court to arrive at fair and just results.”
  1. The only evidence which sheds light on the Minister’s basis for his decision to grant the allotment to Sione is his Savingram to the Secretary dated 9 December 2015 directing the grant in favour of Sione. There, the Minister recounted that Kepueli’s U.S. citizenship meant that his registration of the allotment was deemed null and void, “but consenting to his son applying for this allotment”.
  2. Mr Moala’s evidence confirmed that there was nothing in the Ministry file to explain the basis upon which the Minister determined Sione’s application save for:
  3. The Plaintiff submitted that, on that material, there are two possibilities in relation to the analysis of title to the subject allotment, namely;
  4. As recorded above, Mr Sisifa submitted that the grant to the Plaintiff must have been made pursuant to s.88.
  5. Before considering the parties’ various analyses as to the basis upon which the Minister determined the Plaintiff’s application, I should first address a number of foundational issues.

Kepueli was never entitled to hold the land

  1. It was common ground that, upon being naturalized in 1985 as a U.S. citizen, Kepueli was no longer a Tongan subject capable of holding either a town or tax allotment.
  2. The legislative provisions governing the grant of town or tax allotments of land in Tonga were examined in Taufa v Tahaafe & anor [2015] Tonga LR 104:
  3. To those may be added s) of the Act which providesvides that the Minister’s powers include granting allotments to ‘Tongan subjects duly entitled thereto by law’.
  4. Prior to the 2007 amendments, s. 4(1) of the Nationality Act;prov>provided that any Tongan born person who became naturalized as a citizen of another country thereby ceased to be a Tongan subject legally capable of holding land in Tonga.
  5. Accordingly, in 1985, when he became a naturalized American, Kepueli thereby ceased to be a Tongan subject entitled to hold a tax or town allotment: Australian and New Zealand Banking Group Ltd v Latu [2018] TOLC 3.[5]
  6. Equally, it was common ground that the grant to and subsequent registration in favour of Kepueli was vitiated by a mistake as to his nationality which resulted in an error of law. By use of the legal doublet, all counsel characterized the resulting grant and registration as being “null and void”.
  7. Kepueli gave evidence that he did not realise at the time he renounced his Tongan citizenship and was naturalised as a citizen of the United States that he was no longer entitled to hold land in Tonga. He said that it was only after he received legal advice to that effect in about 2014/15 that he became aware.
  8. I accept Kepueli’s evidence in this regard and that he did not knowingly seek to mislead any of the Minister, Tevita or the Defendants by failing to disclose much earlier that he had taken U.S. citizenship in 1985. It would have been extremely foolish to go to the expense and work of building a house on the land, and paying off a mortgage secured by it, if Kepueli knew at that time that he could never be the legal holder of the land. While he may have been unfortunately naïve in this respect, Kepueli did not strike me as a foolish man.

Full effects of Kepueli taking US citizenship

  1. Mr Sisifa’s case concept, which Mrs Tupou secondarily adopted, proceeds from the basis that the effect of Kepueli’s disentitlement is limited to simply removing him, his grant and registration, from the analysis of title and returning to the events in 2003 as recorded in the then Minister’s Savingram as if the approval of the grant to Kepueli never happened. The submission then directs attention to the application of the succession rules pertaining to ‘Aminiasi’s passing (as the last lawful holder) which it was said ought to have then resulted in the land reverting to the Crown.
  2. In my view, such an analysis of the effects of the mistake borne of Kepueli’s undisclosed foreign nationality is somewhat myopic and fails to take into account the full range of implications on all those affected at that time. For instance, on the basis that, from 1985, Kepueli was not entitled to hold land in Tonga, it must then follow that:
  3. One can see from that analysis, that if all the effects of Kepueli’s nationality are taken into account, and the history of events is ‘rewound’ as it were, the actual result is that, among other things, Tevita’s registration, assuming no other challenges, would most likely have remained intact.
  4. In that regard, Tevita was entitled to the same presumption upon which the Plaintiff here relies, namely, that until it is established to the contrary, the Court will presume that the Register is correct and that registration is final unless it has come about as a result of an error of law (i.e. contrary to the Act) or as a result of fraud, mistake, breach of rhe principles of natural justice or of a promise made by the Minister.
  5. There are a number of difficulties with that.
  6. Firstly, neither Tevita nor Viliami (if he is still alive) were called to give evidence at the trial. It was therefore not possible to put the above propositions to them directly, as affecting their interests, for either confirmation or dispute.
  7. Secondly, and further to the first, there was no evidence from Tevita about what his position would have been had the mistake in relation to Kepueli’s nationality been known at the relevant time, and whether he, Tevita, would have therefore agreed to his registration being cancelled.
  8. Thirdly, there was no independent evidence from the Register that Tevita held another tax allotment at the time.
  9. Fourthly, if Viliami was entitled to succeed ‘Aminiasi, there was no evidence as to why the land was not granted to Viliami. The possibility that he may have held a tax allotment elsewhere rose no higher than conjecture.
  10. Fifthly, in my view, the contents of the Savingram do not evidence any actual investigation or determination by the Minister. Rather, they record an agreement between Tevita and Kepueli, which the Minister approved. For the reasons stated above, that agreement was infected by mistake and Tevita was never under any legal obligation to defend his registration against a challenge by Kepueli or enter into the agreement.
  11. Sixthly, there has never been any curial determination as to the validity of Tevita’s registration.
  12. It is not open to the Court, in this proceeding, to make any determinations in relation to the above matters, including importantly, whether Tevita’s registration should be reinstated. He was neither a party nor a witness in this case. There is no claim for reinstatement before the Court. Tevita has not had an opportunity to be heard.
  13. For reasons which are developed further below, I agree with Mr Edwards’ submission to the effect that had the Minister here been properly apprised and advised, these were all matters which he ought to have considered before determining the Plaintiff’s application. Those which concerned the events of 2003 arose, not from any question as to whether the Minister should have made enquiries or inspected the land, but from a basic analysis of the actual, or even possible, legal effects of Kepueli taking U.S. citizenship in 1985. The periods of time between Kepueli’s citizenship in 1985, his grant in 2003 and the cancellation of his registration in 2015, alone, should have alerted the Minister to give further consideration to the effects of Kepueli’s U.S. citizenship, which in turn, ought to have led to further enquiries being made.

Succession rules

  1. The first of the Plaintiff’s submitted ‘possibilities’ for explaining the status of title to the land leading to the Minister’s grant to the Plaintiff is based on the succession rules.
  2. In his letter dated 28 October 2015 requesting the Minister to cancel his registration and to approve Sione’s application for a grant of the allotment, Kepueli referred on three occasions to Sione being ‘his son and heir’.
  3. In his Savingram to the Secretary dated 9 December 2015, the Minister approved the grant in favour of Sione. He recorded that Kepueli had written to him on 28 October 2014 stating that he had been naturalised as an American. The Minister did not record that Kepueli had in fact been naturalised in 1985 (or even ‘probably in 1983’ as Kepueli actually wrote). He referred to the copy of Kepueli’s U.S. passport. He did not refer to the fact that Kepueli’s passport was issued in May 2014. The Minister then directed that Kepueli’s registration of the tax allotment was deemed null and void, followed by the words “consenting to his son applying for this allotment”. It is not clear whether the Minister meant that he was consenting to Sione, as Kepueli’s son, applying, or whether Kepueli was consenting.
  4. On the basis that Kepueli’s letter and attachments was the only information before the Minister at the time, and in the absence of evidence that the Minister turned his mind to the effects of Kepueli’s nationality discussed above, in my view, it is reasonable to infer that in determining Sione’s application, the Minister simply acceded to Kepueli’s request to cancel his registration and grant the allotment to Sione as his son and heir. The inference is available from the following:
  5. Any possible ‘devolution’ of the allotment from Kepueli to Sione pursuant to Part IV Division VII of the Act depended on two legal requirements:
  6. Neither existed.
  7. For the reasons stated above, Sione could never be Kepueli’s heir for the purpose of the Tonga land succession rules because Kepueli was never a lawful holder of the land. An occupant of land who does not lawfully hold it does not have any estate to pass on to his (here) son: Tu'ipelehake v Minister of Lands [2015] TOLC 8 at [27].
  8. Further, the cancellation of Kepueli’s registration did not constitute his death for the purposes of the succession rules. I am not aware of any authority, and counsel for the Plaintiff did not refer to any,[6] for the proposition that cancellation of registration due to mistake or error of law may be regarded as equivalent to the death of the former holder for the purposes of invoking the succession rules. The proposition is self-evidently, and internally, contradictory.
  9. As such, if the Minister approved Sione’s application on the erroneous basis that he was Kepueli’s heir, the grant was vitiated by error of law, further mistakes and a failure to take into account relevant considerations. On that basis, the registration must be set aside.

Kepueli’s registration: void or voidable?

  1. Apart from the above fatal flaw, another issue arises which is relevant to this and other submissions on behalf of the Plaintiff.
  2. The Plaintiff’s first ‘possibility’ for the explaining the status of title to the allotment as at the time the Minister decided Sione’s application depends for its success upon an explicit or implied assumption that Kepueli’s grant in 2003 and registration in 2014 were, and remained, valid until they were cancelled. In other words, the argument necessarily treats the effect of Kepueli’s U.S. citizenship as rendering his grant and registration by the Minister not void, but voidable.
  3. The Plaintiff’s submissions in this regard did not descend to any detailed analysis as to why this aspect of the ‘possibility’ ought be accepted (preferring instead to defer to “in the event the Court considers the first possibility to be the position...”). Further, no other counsel made any submissions directly on the point. While there are many reported decisions in Tonga in which the Court has determined a grant to be null and void, my research has not unearthed any where the legal effects of that nullity have been considered, especially back over a long time frame such as in the instant case.
  4. Accordingly, in the circumstances of this case, I am reluctant to reach any concluded view on the issue. As will be seen, I have endeavoured instead to address every possible scenario presented by the evidence and submissions leading to and surrounding the Minister’s decision to approve Sione’s application.
  5. However, it is necessary to say something on the matter, even if it be regarded only as obiter dictum.
  6. There is a presumption that the decisions of public bodies are lawful and valid until declared otherwise by the court.[7] Although some acts or measures may be described as being 'void ab initio' or as 'nullities',[8] the modern view is that it is for the court to determine both whether an act is unlawful and what the consequences of that finding of unlawfulness should be.[9]
  7. Any apparent argument that Kepueli’s foreign nationality rendered his grant and registration voidable, meaning his title remained good until cancelled, may be seen (but not submitted) to attract support from a closer consideration of the statement of principle from Skeen and its other related decisions referred to above.
  8. The oft-cited principle commences with “until it is established to the contrary, the Court will presume that the register is correct”.
  9. Here, the defect in Kepueli’s registration was prima facie ‘established’ when he informed the Minister in 2015, and the Minister accepted, that the registration was ‘null and void’ and therefore to be cancelled. Does that mean that until that time, Kepueli’s registration was valid having not been challenged by anyone else? Or, does it mean that the registration remained valid until the Court determines that the Minister’s decision at the time was unlawful and therefore to be set aside; something which has not been advanced in this case.
  10. That also begs a question as to the extent to which the Minister has power to control the register. Sections 18, 73 and 123 of the Land Act expressly empower the Minister to cancel instruments such as leases and deeds of grant in the circumstances provided for therein. But there is no express provision whereby the Minister can cancel a deed of grant because it was unlawfully issued in circumstances such as obtain in the present case. Similarly, the Act is unclear as to the extent and circumstances in which the Minister may rectify the register.
  11. Against that possibility, the term ‘null and void’, if accurately applied here, would ordinarily mean that the grant to Kepueli in 2003 was void from the moment it was made, that is, void ab initio. That meant that the grant and subsequent registration were devoid of legal effect by operation of law. The law treats such an absolute nullity as if it had never existed or happened.[10]
  12. The Act expressly prescribes certain circumstances in which a grant or instrument will be deemed or rendered “null and void”. For instance, s.6 renders any disposition purporting to effect a voluntary conveyance, an out-and-out sale, or a devise by will of an estate or allotment as null and void. Section 48 prohibits a person from holding two allotments of the same kind such that the grant of the second shall be null and void. Pursuant to s.49, any grant in excess of statutory size shall be null and void. Each of those responds to a breach of a fundamental statutory requirement. However, none of those provisions or any other in the Act specify the effects, if any, to others affected by the impugned void grant and its subsequent cancellation.
  13. Here, the most fundamental requirement for any grant – that the applicant be a Tongan subject - was breached, by mistake, in the grant to Kepueli.
  14. My tentative view therefore is that the grant and registration in favour of Kepueli were void ab initio in the legal sense that they are taken never to have occurred. If that is correct, then in the absence of any statutory guidance as to any retrospective effects on third parties, especially those who derived interests from the nullified holder, by mistake, in good faith and/or for value, and to the extent the issue arises for consideration, each case will have to be examined from common law first principles.

Section 50

  1. The likelihood of the Plaintiff’s first submitted possibility being the basis of the Minister’s decision and grant to Sione is diminished by the fact that Sione’s application was made by way of Form 9 being the “Form of Application for Allotment”.[11] The Minister’s approval of that resulted in a deed of grant of the allotment being issued as if it was a fresh grant.
  2. Had the Minister regarded Sione’s application as one pursuant to the succession rules within Part IV Division VII of the Act, then one would have expected, pursuant to s. 122 of the Act, that registration in favour of Sione would have been effected by way of the endorsement provided by that section on Kepueli’s deed of grant. That of course was not the case. An obvious explanation is that upon cancelling Kepueli’s registration, there would have been no deed of grant from him remaining on which the endorsement could be placed showing that Sione had become entitled to hold the land by succession.
  3. That brings us to the Plaintiff’s submitted second and alternative ‘possibility’ in explaining the status of title to the land.
  4. The effect of the submission is that at the time of Kepueli’s confession to the Minister that he was a U.S. citizen and consequent cancellation of Kepueli’s registration:
  5. I assume that the first limb of this submission is that the land reverted to the Crown upon the cancellation of Kepueli’s registration. The possibility that the land reverted in 2003 upon the mistaken and unlawful grant to Kepueli (being void ab initio), as contended for by counsel for the Minister, is considered below in what I regard as the third possibility.
  6. Again, there is nothing before the Court by way of notes or reasons for decision to elucidate whether the Minister ever considered the full legal effects of Kepueli’s nationality, cancelling his grant, and whether the allotment reverted to the Crown then or as at 2003. When asked whether he considered Sione’s application ought to have been considered as one pursuant to s.88 or as a fresh application, Mr Moala preferred the latter.
  7. Even if the timing of reversion be accepted as correct for the sake of the submission, for the reasons which follow, I do not accept that the balance of the limbs to the argument arrive at the conclusion submitted.
  8. In the context of the relevant events of 2015, properly understood in light of my findings on the first possibility, there was no issue of Sione’s application being considered pursuant to the succession rules. Therefore, as Mr Moala agreed in his evidence, it had to be considered by the Minister as a fresh application for a grant.
  9. The Minister’s consideration and determination of the fresh application for a grant of Crown land was governed by s.50 and the relevant principles enunciated by this Court and the Court of Appeal concerning such grants.
  10. The principles of natural justice apply whenever a Minister is exercising his powers in relation to the granting of allotments. A person whose rights, interests or legitimate expectations are imperiled 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: Skeen, ibid at [54].
  11. Further, before making a grant pursuant to s.50, whether it be from an hereditary estate or Crown land, the Minister is required to have regard to whether or not the land in question is available. If he makes a mistake on this issue, whether as a result of an incorrect assumption on his own part or otherwise, the consequence will be that he has failed to take a material fact into account and, in those circumstances, this court will intervene and grant relief: Fifita v Minister of Lands (1972) LR Vol III, 45; ; Skeen vleni [2005] TongaTonga LR 29>Tafi>Tafa v Viau [2006] TOLC 2.[12]
    12. It has bhas been held to now be well established that the Minister must make such enquires as are reasonably necessary in view of the information before him to determine if land is or may be subject to some other claim that might be an impediment to a grant or make it unavailable. In some cases, that will require an inspection and in other cases it may not. The purpose of this obligation to make enquiries is to avoid unjust and unreasonable consequences which might result from the making of a grant. Whether an inspection is required will depend upon there being anything in the circumstances to put the Ministry on alert. Where there are competing applications, or where the position is not clear, a detailed investigation is to be carried out. Another claim may be a competing application for the land but that will not always be the case. The other claim might arise by virtue of the occupation or use of the land by a person who has not made an application for the land. The occupation of the land by someone other than the person applying for it does not necessarily render the land unavailable for grant. That will depend upon the nature and history of the occupation. Also, whether the presence of a building on an allotment is an impediment to a grant must depend on the individual circumstances of each case. A failure by the Minister to consider whether the land is available vitiates the grant: Tu'ipelehake v Minister of Lands [2015] TOLC 8; Maama v Ma'afu [2015] TOLC 12 at [45] to [52]; Naulu v Tupou [2016] TOCA 2 at [14]- [15]; Finau v Finau [2017] TOLC 5;[13] Pekipaki v Fifita [2018] TOLC 5.[14]
  12. A ground of review exists where there is a 'misunderstanding or ignorance of an established and relevant fact' even if the decision-maker lacked actual knowledge of them at the time of the decision: Skeen, ibid at [61].[15] As Brennan J. observed in Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 627:
'What the principles of natural justice require in particular circumstances depends on the circumstances known to the repoy at the time of the exercise of the power or the furtheurther circumstances which, had he acted reasonably and fairly, he would then have known. The repository of a power has to adopt a reasonable and fair procedure before he exercises the power and his observance of the principles of natural justice must not be measured against facts which he did not know and which he would not have known at the relevant time though he acted reasonably and fairly.' [emphasis added]
  1. Where, as here, the Minister, as estate holder, signed the declaration on Sione’s application that there was no impediment to the grant, the Court of Appeal in Naulu held that he ‘could not do so if he simply did not know because he had made no sufficient inquiry’. Further, the Court opined that even where there is no competing application, ‘better practice would be for an inspection of the allotment to be made in every case and anything of concern it revealed followed up’. Their Honours said that in the hope that such a change of practice might reduce the incidence of litigation challenging the making of a grant. The present case adds to those which unfortunately lie in testament to the Minister’s failure to have, so far at least, heeded the Court of Appeal’s guidance.
  2. In my view, as stated in To'a v Taumoepeau [2015] TOLC 4, the Ministry did not handle the re-grant of this land properly. The Minister failed to make any or any sufficient inquiries before granting Sione’s application.
  3. I do not accept that the information before him would not, and ought not, have alerted him to make enquiries. While there may have been no legal obligation on Kepueli and/or Sione to tell the Minister that Kepueli had given permission to the Defendants to live and work on the land, by then, for more than 15 years; or that they had built improvements to and around the house; or that the Defendants had refused to vacate the land because of their recent discovery that Kepueli was an American citizen, in my opinion, the information before the Minister at the relevant time was more than sufficient to alert him to enquire about matter such as:

Sione’s dual citizenship

  1. I pause here, briefly, to consider the issue of Sione’s dual citizenship.
  2. In 2007, the Natity Act (Cap;(Cap. 59) was am by, iby, inter alia, repealing s.4 that took away Tongan nationality from a person who hadme naturalized in a foreign country and enacting a new section 2(c) which provides that anyt any person born abroad of a Tongan mother shall be deemed to be a Tongan subject. As explained in Crown v Schaumkel [2012] TOCA 10 at [6]:
“The 2007 amendments broadened significantly the class of individuals who could become Tongan nationals having regard to, amongst other things, the status of the individual's parents at the time of the individual's birth and enabled Tongan nationals to become nationals of another country without forfeiting their Tongan nationality. In effect, the 2007 amendments recognised and accepted, for the first time in Tongan legislation, the notion of dual nationality... [and] allowed for dual citizenship.”
  1. Mr Moala gave evidence that since the said amendments, the Ministry of Lands and Survey had not yet implemented a policy concerning applications by dual citizens. He said the officers and registrars working on such applications have met regularly to discuss such matters but that, ultimately, they were all matters for direction by the Minister. When asked whether he considered the fact of Sione’s dual citizenship was relevant to the Minister’s decision, he said that it was.
  2. From that, two questions arise.
  3. Firstly, was the Minister aware or should he reasonably have been expected to be aware of Sione’s dual citizenship? The only documents of identification submitted with his application were his Tongan birth certificate and passport. A basic reading of those documents would have conveyed to the Minister that Sione was born in Honolulu in 1986, his parents were born in Tonga (although he knew by then that Kepueli had been naturalized as an American), and that his Tongan birth certificate, passport and application were all issued within days of each other in October 2015. In my view, that information was sufficient for the Minister to understand that Sione was or was likely to be a dual citizen or at least prompt him to enquire about that possibility.
  4. Secondly, given the legal recognition of dual citizenship, how might the fact of Sione’s dual citizenship have been relevant to the Minister’s decision? Section 50 makes plain that, in a general sense, an applicant’s place of residence is a relevant consideration in granting allotments. In the instant case, had the most basic enquiries been made, the Minister would likely have become aware that Sione is not resident in Tonga, but in the U.S. Further, his evidence on his intentions for the land was not persuasive and was also inconsistent with his father’s. Under cross-examination, Sione said that he did not intend to the ‘sell’ the land and, in fact, intended to build on it. However, he also said that once he had the allotment registered in his name, he returned to the U.S. When Kepueli was asked about the reasons he wrote to the Minister, he explained that once he realized he could not be the lawful holder of the land, he took legal advice to the effect that because Lata had retained her Tongan citizenship, Sione was deemed a Tongan subject capable of holding land. As a result, Kepueli said he had Sione’s birth registered here and a Tongan passport issued for him. That occurred only days prior to Kepueli’s approach to the Minister. On deeper examination, Kepueli further explained that the reason for having Sione apply for the land was to enable Kepueli to send his married daughter out to live on it if she and her husband wished. My question as to what benefit, if any, Sione was to derive from that plan went unanswered.
  5. On that basis, I am satisfied that, despite Sione being born and living in the U.S. to this day, Kepueli orchestrated the registration of Sione’s Tongan nationality for the sole purpose of effecting Kepueli’s plan for the land, in respect of which, he gave up all title when he became a U.S. citizen in 1985.
  6. In my view, had the Minister made enquiries, and thereby become aware of the Defendants’ long occupation of the land, then the fact of Sione’s dual citizenship coupled with the above evidence would have been relevant to understanding the history and usage of the land as well as any question of connection to it. That is not to say that the Minister had to decide the application on this basis, or any other; merely that, in this case, it was a relevant consideration.

Minister’s failure to make enquiries

  1. Had the Minister considered the possible ramifications flowing from Kepueli’s nationality and unlawful grant in 2003, the above train of enquiry could have started with little more than a simple question such as: “Well, what’s been happening on the land in the meantime?”
  2. I do not accept the submission that as the Defendants could not identify any legal basis to claim a grant of the allotment, therefore it would not have mattered if the Minister had conducted enquiries such as those described above. The Minister has a wide range of options when exercising his discretion in relation to Crown land.[16] Apart from whole grants, Crown land may be subdivided or leased. In any event, the Plaintiff’s submission in this regard misses the point. The issue is whether the Minister carried out his legal obligations and duties before deciding Sione’s application, not what the outcome might have been had those reasonable enquiries been made.
  3. Further, I do not consider the Defendants to be either squatters or trespassers. They have lawfully occupied the land pursuant to the permission or licence of Kepueli, albeit it was as if a non domino.[17] At all material times, neither Kepueli or the Defendants realized that he was not, and could not, be the lawful holder of the land. The Defendants altered their position in reliance upon the truth of Kepueli’s representations that he was the holder of the land. Kepueli never had any legal right to have the Defendants evicted. Sione’s right to do so is subject to the fate of his grant in this proceeding. Had the Crown stepped in earlier and ordered the Defendants to vacate on the basis that Kepueli’s grant was void and the land had reverted, different considerations might apply. However, no claim to that effect has been made on behalf of the Minister in this proceeding. See Manu v 'Aholelei [2015] TOLC 5 at [36] to [48]; and Helu v Helu [2017] TOLC 1 at [64]- [65].
  4. Accordingly, if the Minister determined Sione’s application as a fresh application for a grant of Crown land, then I find that, in this case:

thereby, in the exercise of his discretion, the Minister acted on wrong principles, failed to take into account relevant considerations, was mistaken by assuming the land was available and breached the rules of natural justice.


  1. As stated in Tafa v Viau, ibid:
“To have a situation, therefore, where the Minister of Lands is able to make a grant of an allotment in total disregard for the rights of a long-term lawful occupant of the same piece of land, is quite untenable and is a recipe for lawlessness. I cannot accept that such a consequence could ever have been intended by the legislature.”
  1. On this second possibility then, and to avoid an 'unjust or totally unreasonable consequence',[19] the grant to Sione must be set aside.

Section 88

  1. I turn now then to the third possibility raised on the submissions, spearheaded by Mr Sisifa for the Minister. This argument proceeds from a quite different perspective, one which draws into sharp focus the question of whether Kepueli’s grant was void or voidable.
  2. It was submitted that the allotment should be assumed to have been re-granted by the Minister pursuant to s.88 as a result of it reverting to the Crown by reason of the failure of the succession rules at the time of ‘Aminiasi’s passing. That analysis, which is not concerned with the events of 2015, proceeds from the basis that as Kepueli’s grant was ‘null and void’, the Court should return to examine the situation as at the death of the last lawful male holder.
  3. Section 83 of the Act provides:
“Reversion
On the death of the lawful male holder of any tax or town allotment without leaving any person entitled to succeed thereto in accordance with the provisions of this Act such allotment shall if situate on Crown Land revert to the Crown and if situate on an hereditary estate shall revert to the holder thereof.”
  1. The question of whether ‘Aminiasi died without leaving any person entitled to succeed is answered by the analysis on the full effects of Kepueli taking U.S. citizenship discussed above. On the available evidence, ‘Aminiasi in fact left two people who were arguably entitled to succeed him: his elder brother, Viliami, and Tevita.
  2. Any issue of whether one or other of them was legally entitled (the ‘rightful heir’) to inherit the land cannot be resolved in this proceeding. For the reasons previously stated, I am of the opinion that the contents of the then Minister’s Savingram in 2003 is not evidence of any authoritative determination of those questions, particularly, in relation to Tevita’s registration. But for the unwitting and common mistake as to Kepueli’s nationality at the time, Tevita’s registration would in all likelihood have been maintained.
  3. The other basis upon which the Minister and the Plaintiff seek to pave a way to s.88 is via s.87, which provides, relevantly:
“Heir must claim within one year
If no claim to a tax ... allotment has been lodged by or on behalf of the heir ... with the Minister or his Deputy within 12 months from the death of the last holder ..., such allotment if situate on Crown Land shall revert to the Crown ....”
  1. Here, Tevita did lodge a claim within the timeframe prescribed by s.87. Any question as to whether he was or is the ‘heir’ in the sense that that is taken to mean the male person entitled to succeed is again inextricably linked to the analysis of the full effects of Kepueli’s U.S. citizenship canvassed above.
  2. As it has not been established that Tevita’s registration was vitiated by error of law, fraud, mistake, breach of natural justice or breach of promise by the Minister, and that any agreement by him to have his registration cancelled was infected by material mistake, I am not satisfied on the evidence that either s.83 or s.87 have been engaged.
  3. This third submission culminates in s.88 which provides:
“Minister may re-grant reverted allotment
Where any tax or town allotment shall revert to the Crown under the preceding provisions of this Division, such allotment unless required for Government purposes shall be granted out by the Minister in accordance within such regulations as may be made under this Act.”
  1. In my opinion, for the reasons stated, the tax allotment here did not revert to the Crown under the preceding provisions of either s.83 or s.87. Accordingly, I find the Minister’s purported grant to Sione was not made pursuant to s.88.
  2. I am fortified in that view by the lack of any reference in the deed of grant or the Minister’s savingram directing the preparation of the deed, nor is there any other evidence that the Minister had regard to s.83 or s.87 in determining whether, and if so, how the land reverted to the Crown or that he re-granted it pursuant to s.88.

If s.88 applies

  1. However, if I am wrong in any part of the above analysis and, as a result, s.88 is considered to be the basis upon which the Minister granted the allotment to the Plaintiff, then for the reasons which follow, the final result does not change.
  2. Both the Minster and the Plaintiff submit that in determining the application pursuant to s.88, the Minister was not required to inspect the land or make other enquiries. Reliance was placed on the Court of Appeal’s decision in Finau v Minister of Lands & Heimuli [2012] Tonga LR 127, in which it was held that:
"[15] Returning to s 88, there is nothing in the language or context of the section, or having regard to the Act as a whole, which justifies the implication of a precondition for grant under that section that the land is "available" in the sense in which the word is used in s 50. As just noted, having regard to the ordinary meaning of the word "available", the land could not be granted under s 88 unless it was available. However, under section 88, land is available if it has reverted to the Crown and there is no existing heir who might claim the land and, additionally, the land is not required for government purposes. Given these express preconditions to the making of a grant under section 88, there is no warrant, in our opinion, to imply a precondition, arguably arising under another section, namely section 50."
  1. Read in context, the rationale for the Court of Appeal’s decision in this regard may be readily understood. Section 88 will be engaged where there has been a failure of the succession rules, namely and relevantly, where there is no person capable of succeeding; or, if there is, that person has failed to make a claim within time.
  2. In the case of s.83 – no person capable of succeeding – reversion occurs immediately upon the death of the last lawful male holder. In that event, any licence held by another to occupy the land terminates upon the death. As it would be impossible for any other person to be granted a licence to occupy after the holder’s death, it is very difficult to conceive of any circumstance concerning the land which could exist which would require an inspection by the Minister prior to re-granting it. Any occupant continuing on the land post-termination of his or her licence upon the death of the last lawful holder would be susceptible to eviction either upon the motion of the Minister prior to re-grant or the new holder after re-grant.
  3. In the case of s.87, a failure by a person capable of succeeding to make a claim within time, a similar analysis applies. There, the land reverts upon the expiration of 12 months from the death of the last lawful holder. If, in that time, the relevant person does not want the land, it is difficult see how or what could possibly happen to the land which would warrant inspection. If the relevant person, say, did not know of the death of the last lawful holder, but did want the land, then upon becoming aware and prior to any re-grant to another person, the relevant person could apply to the Minister for a grant under s.88.
  4. Both scenarios above ought ordinarily involve relatively short timeframes from reversion to when the land could be re-granted. Even though in Finau v Minister of Lands, the lawful holder died in 1994 and the land was not re-granted until 2007, there was no question there of there being no heir and therefore no issue about whether s.88 applied. The actual time from reversion to re-grant will also obviously depend on whether, and if so when, a person interested in the land makes a claim for it.
  5. In the present case, the Defendants had been in occupation for more than 15 years and 12 years had passed since ‘Aminiasi’s death. There were also unusual issues arising from Kepueli’s U.S. citizenship as to:

Those features alone distinguish the instant case from Finau v Minister of Lands.


  1. Ultimately, no question arises as to the statement of principle by the Court of Appeal referred to above. Rather, the answer to this third submission may in fact be found in another passage from the Court of Appeal’s decision.
  2. At paragraph 10, the Court opined, relevantly:
[10] ... However there is nothing about the nature of the power conferred by s 88 which suggests that regulations would be necessary in order to perfect the description of the power or further identify the nature of the power. Nor would regulations be necessary to identify procedural steps to be taken before or following the power's exercise. The power is completely described, namely to grant out the allotment and there is no particular reason why it is necessary to have specified procedures as long as common law requirements (for example, providing interested parties with an opportunity to be heard) are met. ....” [emphasis added]
  1. In my view, the two passages may be reconciled in the circumstances of this case in this way. In determining an application for re-grant under s.88, the land is deemed available if it has reverted to the Crown, there is no existing heir who might claim the land, and the land is not required for Government purposes. However, if there are other circumstances, particularly, ones which raise actual or potential questions about any of the factors deeming the land to be available under s.88 such as reversion or whether there is or was an existing heir at the time of apparent reversion, or any other circumstances which leave the situation unclear, the common law requirements for such administrative decisions, such as providing interested parties with an opportunity to be heard, must be met.
  2. During submissions, Mr Sisifa agreed that in re-granting land under s.188, the Minister retained a discretion as he does for any other grant. In other words, the Minister is not compelled to simply grant the first application that might be submitted for Crown land subject to s.188. A typical example proving the point is where more than one application is received at or about the same time. The Minister is not obliged to approve the first in time. He is required to consider the matter. How is his discretion to be exercised? It must be exercised in accordance with the Act (as interpreted and applied by this Court, and where previous decisions have been successfully appealed, by the Court of Appeal), any other applicable statutory requirements (such as the Constitution), and common law principles including observance of the rules of natural justice.
  3. Here, if the Minister did consider the Plaintiff’s application as one pursuant to s.88, then while there was no competing formal application to that of Sione’s, the unusual circumstances before the Minister in this case required him to observe common law requirements, including providing interested parties with an opportunity to be heard. The most basic enquiries, which did not necessarily involve an inspection of the allotment, would very likely have led to the Minister becoming aware of the Defendants and their longstanding occupation of the land, in which case, he was obliged to afford them an opportunity to be heard.

RESULT

  1. On each of the three posited bases for the Minister’s purported grant to the Plaintiff, I have found that the Minister’s decision was vitiated by any one or other of application of wrong principle, error of law, failing to take into account relevant considerations, mistake and failure to observe the rules of natural justice.
  2. I therefore:
  3. It will be noted that, consistent with authority, I have not attempted to decide the various issues that have arisen in this case which the Minister ought to have considered. Subject to what I have found on the issues which were for determination by the Court, all other issues such as whether Tevita’s registration should have been cancelled, what if any interest he may still have in the land, the Defendant’s continued occupation and the Plaintiff’s connection if any with the land, are all matters for the Minister to decide.
  4. No claims were made, nor submissions advanced, by either of the main protagonists in relation to the house and so I make no orders in respect of it.
  5. As to costs, in circumstances where:

I consider it appropriate to make no order in relation to costs so that they lie where they fall and each party bears his or her own.

  1. Should any party wish to be heard on an application for a different costs order, they are to file submissions within 14 days of the date hereof.
NUKU’ALOFA
M. H. Whitten QC LCJ
3 March 2020
PRESIDENT

[1] Koloamatangi v Koloamatangi [2003] Tonga LR 131; Finau v Mo'unga [2003] TOSC 38; Skeen v Sovaleni [2005] Tonga LR 298; Tafa v Viau [2006] Tonga LR 125; Ma'ake v Lataimu'a [2007] Tonga LR 15; Finau v Finau [2017] TOLC 5.
[2] At page 300.
[3] [36]
[4] Citing Schaumkel v ‘Ahol;Aholelei (Unreported, Court of A, ACl, AC 14/2012, 17 April 2013) and Pelesikoti v ‘Anau (Unreported, Land Court, L11/2016, 24 November 2016, Paulsen LCJ)).
[5] Referring to Ministry of Land Lands v Kulitapa [1974-1980] Tonga LR Pahulu v Mottnd anori0;[1996] Ton] Tonga LR 253; Taufa v Tahaafe anor [20onga LR 104.
[2012] TLR 127 at the top of page page 4 of Mrs Tupou’s closing submis didassist and appearppeared toed to be typographically out of place with the rest of the submission or otherwise was unintelligible.
[7] See eg Sm East Elloe RDC&#1i> [1956] ER 855 at&#160 872;&#16dinodon v Britisritish Transport Police [1998] UKHL 13; [1998] 2 All ER 203 60 Crédit Suit Suisse v AllerBorouuncil#160;[1996] 4 All ER 129 at 153&#853&#8211 R v Restormel Borougorougorough Couh Council, ex p Corbett [2EWv 330;at [15] per0;per0;per Schiemann LJ.n LJ. This presumption is sometimes expressed in terms of a decision being 'voidable' or is also referred to as presun of regularity': see Mossellaica) vca) v Offi Office of Utilities Regulations& [2010C 1 at [44]. An o An order of any court is binding until it is set aside or varied: Isaacs v Robertson [1984] 3 All ER 140;at&#160 142̷dale Metroan Boan Borough Council v KW [160; [2016] 2 All ER 181; Mua enna v Secretary of y of State for Communities ocal nment [2015] All ER (D) 68 (Dec).
[8]/sup> See eg &#/i> [160;[1969] 1 Al208 at60;at 234 (strictly no neequash aash a decision found to be in excess of juction because it is a nullity); Boddington visritish Trah Transport supra, per Lord Irvine of Lairg LC, and at 164&#821 and 8211;220 per Lord Lord Slyn Slynn of Hadley; Ahmed v HM Treasury, abrGhabra v HM Treasury, R (on the application of Youssef) v HM Treasury [2010] 4 All ER 745 courts urts have had to consider the situation where an act is a nullity but has been relion by third parties: see foee for example White v South Derbyshire District Council [2012] EWH5; R (on the athe application of UNISON) v Lord Chancellor [2017] UKSC 51; [2017] 4 All ER 903 per Lord RDecisions made onde on the back of unlawful decisare a nullity Smith v Secretary of Staf State for Communommunities and Local Government [2015] EWHC 784 n). The voie voidof thst acs not dnot determetermine whether the second act is valid: AAM (a acting by h by h by his litigation friend, FJ) v Secretarytate for the Home Department [201HC 2567 (QB) (QB) #160;at [104],;[2012] All EAll ER (D) 175 (Sep) per Lang J DBE.sup>[9] See London and Clydeside Es ates Ltd v Aberdeen District Council [1979]l ER 160;at&#16 (883 (883 (there is a spectrum of illegality and it is for the court to determinermine what the consequences of illegalityld be60;Chief ConstConstable of the North Wales Police v Evans R retary of State fate fate for the Home Department, ex p Malhi [1990] 2 All ER 357 at 3611;36, per Mper Mustill Lill LJ (noting that with the current rapid development of the law of judicial review the distinctitweend' anidable' is now in some fields becoming obsolete); Calvin v Carr [197 [1979[1979] 2 All ER 440, PC (observing that a decision made contrary to natural justice is void, but that until it is so declared by a competent body or court, it may have sofect, or existence, in law) law).
[10] Australian Education Union v General Manager of Fair Work Australia [2012] HCA 19 at [38] and [112].
[11] Compare now Schedule IX, Form 11.
[12] Referring to also Wandsworth London Borough Council v Winder [1984] 3 All ER nd DoyleDoyle and others v Northumbria Probation Committee [1991] 4 All ER 294.
[13] Referring to Naulu v Tupou and Others [2016] TOCA 2.
[14] Referring to Tafa v Viau [2006] To.L.R 287 and Finau v Mini Minister of Lands & Anr [2012] TOCA 9.
[15] Citing Fowler & Roderique Ltd v Attorney General [1987ZLR 56 (CA) and Eand Elias J. (a tshe then was) in Ali v Deportation Review Tribunal [199AR 208 at 21ferrinerring to the shglish Court of Appeal decision of Secretary of State for Educationation and Science v Tameside Metropolitan Borouuncil#160;[1977] AC 1014.
[16] Pekipaki vaki v Fifita [2018] TOLC 5 at [49].
[17] Disposition of property granted by a party who has no title to it.
[18] Tafa v Viau, ibid.
[19] Fifita v Minister of Lands, ibid.

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