Kata v Lau'i [2024] TOLC 4; LA 11 of 2024 (20 September 2024)

IN THE LAND COURT OF TONGA
VAVA’U REGISTRY

LA 11 of 2024

BETWEEN :
MONUINA MA’U KATA
- Plaintiff

AND :

VAKA LAU’I
- Defendant

RULING

BEFORE: HON. JUSTICE TUPOU KC
HON. LAND ASSESSOR SINILAU TOUMO’UA
Appearances: Mr ‘A. Pouvalu for the Plaintiff
Miss L. Fonua for the Defendant
Date of Hearing: 19 September, 2024
Date of Ruling: 20 September, 2024

The nature of the case

1. The Plaintiff has applied for judgment by formal proof pursuant to Order 6 Rule (3) of the Land Court Rules.
   
2. The Plaintiff is the registered holder of a town allotment at Leimatu’a, Vava'u. It is alleged that the Defendant has unlawfully occupied the allotment and the Plaintiff seeks a declaration that the Defendant’s occupation is unlawful as well as an order for his eviction.
   
3. After service of the proceedings upon him, the Defendant has not taken any steps or engaged in the proceedings. He has had notice of the hearing today and Counsel, Miss. Lilika Fonua attended on his behalf.
   

The facts

4. The Plaintiff, Monuina Ma’u Kata, aged 43, is the registered holder of the town allotment known as “Keeni Uluakimana” at Leimatu’a, Vava’u consisting of 30.0p and all the land contained in Deed of Grant 474/57 (“the Land”).
   
5. The Land adjoins Sione Ma’u’s registered tax allotment. Sione Ma’u is Monuina’s late father.
   
6. The estate holder of Leimatu’a is Fotu. Monuina’s grandfather and father had fenced off his tax allotment including the land subject of this claim and farmed all of it. Sione Ma’u and Monuina, after his grandfather’s death, continued to farm the area and maintained the fence at all times.
   
7. A cemetery was positioned between the town and the Land. In 2014, Fotu required a part of the Land as an extension of the cemetery. Monuina removed part of his fence and crops for the extension of the cemetery.
   
8. Monuina applied to register the Land as his town allotment that same year. Polotu Lomu Kilioni, the Land Registrar at the Ministry of Lands, Neiafu confirmed that Monuina’s application was filed on 28 October, 2014. The survey fees were paid on 28 October, 2014. Ms. Kilioni produced a Savingram dated 13 April, 2015 that was signed by Lord Ma’afu in his capacity as Minister of Lands accepting Monuina’s application and directing for work to be completed and a map be drawn to be registered in Monuina’s name upon completion.
   
9. The Savingram read:
   

“....The allotment consists of 30p as described on the townplan of Leimatu’a. The estate holder has granted this area to the applicant on 27.10.2014, a residual area from the Leimatu’a subdivision.

Survey fee has been paid shown on Rec.268906-28.10.2014 $46.00

Effect the division as shown on the map, once the works is completed, please re-submit so it can be registered."

10. The allotment was finally registered on 23 November, 2023. A copy of the Deed of Grant was produced with the second page attached, after the trial, as requested from the bench.
    
11. In answer to a question from the bench, Ms. Kilioni confirmed that there were no other applications for the Land before the Minister.
    
12. In 2017, Monuina authorised ‘Ofa To’a to farm the tax allotment and the Land. In 2018 Monuina and his family migrated to the United States of America.
    
13. In 2022, ‘Ofa To’a informed Monuina that the Defendant had erected a corrugated iron shed and moved onto the town allotment claiming, Viliami Latu, the estate holder’s son, had given him the Land.
    
14. There are no blood ties between Monuina and the Defendant. Monuina did not give him permission to be on his Land. On 24 March, 2024, Monuina, through his lawyer, requested the Defendant to vacate his Land. The Defendant refused.
    
15. The Plaintiff’s claim was served on the Defendant on 29 March, 2024. He failed to file a defence.

Discussion

16. I am satisfied that Monuina was granted the Land and was in possession of it on or about 13 April, 2015 when the Hon. Minister signed the Savingram of even date.
17. Mr. Pouvalu, for the Plaintiff, relied on the case of Lavemai v Pua’a [2018] TOLC 14 but acknowledged the distinguinshing fact, that in that case the relevant land was registered to the Plaintiff.
18. I find the case of Folau v Taione [2016] TOLC 2 more relevant. In that case, the Lord President of the Land Court had this to say:

“It is now well established that registration is simply evidence of ownership of land (Mesui Moala v Tu'i'afitu and Anor [1956] Vol II Tonga LR 104, Tu'i'afitu and Anor v Mesui Moala [1956] Vol II Tonga LR 155, Fifita Manakotau v Vaha'i (Noble) Vol II Tonga LR 121, 123 and Ongosia v Tu'inukuafe and Minister of Lands (1981-1988) Tonga LR 113). Most recently the Court of Appeal in Lisiate (supra) at [31] rejected the view expressed in Folau Tokotaha v Deputy Minister of Lands and Anor [1923-1962] Tonga LR 159 that a person claiming title to an allotment must be able to show that he was registered as the holder of the land. The Court preferred the view expressed by Hunter J in Mesui Moala (supra) and Fifita Manakotau (supra) and quoted with approval the following analysis in Fifita Manakotau where Hunter J said at page 123:

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 that whilst registration is evidence of ownership it is not always necessary to prove registration before ownership can be established. With this statement of the law we agreed.”^[1]

19. There, the court found the existence of a grant relying on the following facts:
    1. That Folau had taken all the steps required of him by the Land Act to obtain a grant by lodging a complete application with the Ministry of Lands for a grant of land;
    2. The Minister had done everything that he had to do, except for signing the Deed of grant once it was prepared;
    100. Folau had paid the survey fee required. The Court noted the evidence that survey fees were payable once a direction to that effect is issued by the Minister must indicate the Minister’s intention to grant Folau the allotment;
    4. The content of the mentioned savingram reflected that a grant had been made and the Minister expected registration to occur once the work is ready and his direction to draw up a map was completed; and
    5. There were no competing applications before the Minister at the relevant time.^[2]
       
20. The Court found the combination of the above factors sufficient to give rise to a proper inference that the Minister did make a grant to Folau. Therefore, qualifying him as the holder of the allotment despite the registration never being completed. Provided that was through no fault of his.
    
21. All of these factors are present in this case. I adopt and follow that view and find that the Minister did make a grant of the Land to Monuina on 13 April, 2015. At that point he qualified as the holder of the Land.
    
22. The Defendant cannot rely on the estate holder’s son’s permission to occupy the Land. He is not the estate holder and has no right to dispossess an allotment holder on his father’s estate other than in a manner provided by the Land Act.
23. Monuina has never given the Defendant permission to occupy the Land. I am satisfied that demand had been made on the Defendant to vacate and he has refused. He is presently a trespasser on Monuina’s Land.
24. Damages were claimed but no evidence was called and therefore no award for damages is made.
    

Result

25. For the above reasons I make the following orders:
    1. I hereby declare that Vaka Lau’i’s occupation of the town allotment situated at Leimatu’a consisting of 30p known as “Keeni Uluakimana” registered in the name of Monuina Ma’u Kata on 21 November, 2023, is unlawful.
    2. Vaka Lau’i is to vacate Monuina’s town allotment known as “Keeni Uluakimana” forthwith.
    100. Vaka Lau’i is to remove from “Keeni Uluakimana” all of his possessions including any corrugated iron shed and water tank he may have erected on the Land and restore the land to its original condition as before his occupation.
    4. Monuina Ma’u Kata is entitled to his costs to be taxed if not agreed.
       

P. Tupou KC
Judge

VAVA’U: 20 September, 2024.

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^[1] Folau v Taione [2016] TOLC 2, para 30
^[2] Ibid. para.33