Talia'uli v Ola [2023] TOLC 2; LA 13 of 2022 (4 May 2023)

IN THE LAND COURT OF TONGA
NUKU’ALOFA REGISTRY

LA 13 of 2022

BETWEEN :

KILIFI TALIA’ULI
Plaintiff

AND :

1. NGALU OLA
2. MINISTER OF LANDS
Defendants

RULING

Before: Justice P. Tupou KC
Land Assessor: Mr. F. Tu’ifua

Counsel: Mr. A. Pouvalu

Date of hearing: 14 April, 2023
Date of Ruling: 4 May, 2023

The Nature of the Case

1. The Plaintiff seeks judgment by formal proof. The land in dispute is a town allotment situated at Mataika, Vava’u (“the Land”). The Plaintiff alleges that he had occupied and cared for the Land since 2004.
   
2. The First Defendant is his first cousin. Their fathers are brothers. The Plaintiff’s father, Viliami is the eldest of 7 brothers. The Plaintiff is his second son. The First Defendant’s father, Talia’uli is one of the younger brothers.
   
3. On 2 December, 2021 the Second Defendant as Deputy Minister of Lands granted the Land to the First Defendant as his town allotment.
   
4. The Plaintiff alleges that the Second Defendant’s grant of the Land to the First Defendant is unlawful for fraudulent misrepresentations by the First Defendant, the Second Defendant’s consideration of irrelevant factors, failure to make proper enquiries and breach of natural justice. He seeks orders to set the registration aside.
   
5. After service of the proceedings on the Defendants, they took no steps. They had notice of the formal proof hearing on 14 April, 2023 but took no steps.
   

The Facts

6. The Plaintiff, Kilifi Talia’uli is 40 years old and was a prison officer at Ha’alefo Prison, Vava’u. In 2004 his parents, Viliami and Hehea Talia’uli, moved their old house onto the Land because they were building a new house on their town allotment. At the time, the Land was vacant, in bush and unregistered.
   
7. The Plaintiff moved to the Land and had the electricity connected to the old house. In 2014 he got married and was posted to Hu’atolitoli Prisons in Tongatapu. He left the Land and house in the care of his younger brother, Pasipakola Talia’uli. During the holidays, he and his family would return and spend that time at the house and the Land in Vava’u.
   
8. The Plaintiff’s father had previously approached the Governor of Vava’u to claim the land for the Plaintiff. Apparently, the land was less than the prescribed area for a town allotment and was reserved as a historical site as part of Fekitetele Tombs.
   
9. According to the Plaintiff, the First Defendant had not lived on the Land at any time. When he was in Vava’u, he lived at one of their aunt’s home, ‘Ana Laukau, as they were missionaries abroad. When her husband died, she returned to Tonga. The First Defendant then moved to the town allotment directly facing the Land from across the public road. That was Sete’s land, an uncle to both of them.
   
10. Unknown to the Plaintiff, the First Defendant applied for the town allotment and was granted by the Second Defendant on 9 April, 2019. A site inspection that cited “Version: Nov, 2015 was confirmed by Semisi Moala of the Ministry of Lands. The inspection report relevantly stated:
    

“Property Description: 1 r 00p. There is an old Hurrican[sic] building. Well kept, plants flowers”

Interview: Ngalu Ola (applicant) – they have always been the caretaker of that piece of land and have lived on it for many years.

Observations – the applicant’s parents’ home is just across the road which explains their occupation of the vacant land next to theirs.”

11. The Ministerial brief was checked by an officer on 1 September, 2020. It contained the following as background:
    

“Because the concerned allotment was available, and facing the registered land of his father, the applicant’s family used that land as an extension to their home. After the Isaac Cyclone, a hurricane building was erected. Soon afterwards all of the family moved to Nuku’alofa, and the premises was left vacant. The applicant has an older brother who is the heir to their father’s registered land. The applicant has no land in his name and wishes to register this vacant land. The area is 1r 00p...”

12. The Second Defendant wrote to the Minister of Lands in 2020. That letter contained the same information in the above brief which attached a letter from the town officer of Mataika dated 9 August, 2018.
    
13. The Plaintiff received communication from Pasipakola that the First Defendant had fenced the Land and then a letter dated 24 November, 2022 from the Defendant’s lawyer to the Plaintiff, his mother, Hehea Talia’uli, his sister and brother was received. The letter stated:
    

“I respectfully act for Ngalu Ola who has complained about the “hurricane house” belonging to Viliami and Hehea Talia’uli that was moved from Luna Ngalu Ola’s town allotment to Ngalu Ola’s town allotment.

According to Ngalu Ola he has been constantly harassed regarding his town allotment though you have no legal rights over it. He had requested that you remove the hurricane house from his land in July, 2022 but you have not done so. Consequently, I am giving you a final opportunity to dismantle and remove the house within 14 days from today. Failure to do so will result in Ngalu Ola charging you $20 per day for the presence of the house on his town land. Legal proceedings are expensive and embarrassing for you and each of your families.

It is my hope that this is understood.

Respectfully

Sione T. Taufateau”

Discussion

Fraudulent Misrepresentation

14. In examining the content of Mr. Taufateau’s letter^[1], there can be no mistake that the First Defendant knew that the building on the Land belonged to the Plaintiff’s parents, Viliami and Hehea and that it was moved there by them. Yet, he had misled the officers from the Second Defendant’s office to believe that the building was erected by his family after cyclone Isaac and that he had cared for and lived on the Land for many years.
    
15. That was in further contradiction to the information on the Ministerial briefing^[2], that his family left for Nuku’alofa shortly after cyclone Isaac. It is common knowledge that cyclone Isaac was in the 1980s.
    
16. In Helu v Taufa [1995]Tonga LR, 107, 113 Lewis J said:
    

“Fraud or mistake will vitiate the grant in any case where it is established to the satisfaction of the Court on the balance of probabilities.”

17. For the above reasons, I am satisfied on the balance of probabilities that the First Defendant fraudulently misrepresented to the officers of the Second Defendant’s office that his family had erected the building on the Land after cyclone Isaac and that they had lived on the land for many years knowing that information to be false.
    

Irrelevant considerations

18. I understand the ground of irrelevant considerations directly relate to the misrepresentations I have dealt with above and will make no further comment on that point.
    

No proper enquiry

19. It has been said in this court that enquiries should extend to independent persons beyond the applicant or persons speaking on behalf of the applicant. In Napa’a v Minister of Lands & ors (LA 7/2020 – TOLC 16 December, 2020),^[3] Niu J said:
    

“I am however concerned that the officer did not think to ask some other person or persons either living next door to the allotment or nearby to ascertain whether or not the information which Kolo was telling him was true, that is, an independent person from Kolo because Kolo was the father of the applicant and was in fact the one making the applicant on behalf of his son.”

20. No evidence was shown that anyone other than the First Defendant was consulted regarding the Land and his application for it.
    
21. I have looked closely at the letter^[4] provided by the town officer of Mataika and agree with Mr. Pouvalu that it is a character reference. It makes no mention of the Land, its status or the First Defendant’s connection to it. The Second Defendant’s Savingram to the Minister of Lands in 2020^[5] stating that the said letter confirmed the Land was vacant is clearly wrong.
    
22. For these reasons, I am satisfied that this ground has been proved.
    

Breach of Natural Justice

23. I am satisfied that the Plaintiff had occupied the Land since 2004 when his parents moved the old family house there. His younger brother had been looking after it for him since 2014 when he moved to Nuku’alofa and that he brings his family there on holidays.
    
24. As a result, he is a person whose interests by way of his occupation and care for the Land for almost 2 decades would be imperiled by the Second Defendant’s decision to grant the Land to the First Defendant and should have been given an opportunity to be heard. In Hakeai v Minister of Lands [1996]TLR 142,143, the Court said:
    

“.... it is clear law that 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...”

25. There was no evidence that the Plaintiff was afforded such opportunity by the Second Defendant prior to granting the Land to the First Defendant and I am satisfied that this ground has been proven.
    

Result

26. For the above reasons, I declare that the First Defendant’s registration in respect of the town allotment described under Deed of Grant Book 473 Folio 32, situated at Mataika, Vava’u consisting of an area of 769.0m² is void.
    
27. I order that the Minister is to cancel the First Defendant’s registration in respect of the town allotment described above.
    
28. The parties are free to submit fresh applications for the Second Defendant to consider as he may choose.
    
29. The Defendants shall pay the Plaintiffs costs to be agreed or taxed.
    

P. Tupou KC
J U D G E

Nuku’alofa: 4 May, 2023

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^[1] Pg.14 ibid.
^[2] Pg.11 ibid.
^[3] followed in Hafoka v Talite (LA11.2021) TOLC 17 March, 2023
^[4] Pg.8 of Plaintiff’s documents
^[5] Pg. 12 ibid.