Maka v Minister of Lands [1956] TOLawRp 10; [1923-1962] Tonga LR 111 (19 November 1956)

[1923-1962] Tonga LR 111

IN THE HIGH COURT OF TONGA
NUKU'ALOFA REGISTRY

BETWEEN:

KAPETI MAKA

v

MINISTER OF LANDS AND VILIAMI 'ASIPA

Land Court, Hunter J. 'Etoni Tonga, Assessor. Nuku'alofa, 15^th, 16th and 19th November, 1956).

Registration of Allotments — Minister's discretion — Registration conclusive in absence of mistake etc. — Disagreement between judge and Assessor — Law must prevail over sympathy.

The facts are set out in the judgment. Thu Minister refused the plaintiffs application for an allotment on the ground that he was a tax payer in another district and that he should first apply for an allotment in that district. The Minister registered the defendant as the holder of the allotment in dispute.

HELD: That the Minister had properly exercised his discretion and that his decision should not he upset even though the learned Assessor took the opposite view.

Verdict for the defendant.

Finati appeared for the plaintiff.

Kinahoi (Clerk) appeared for the Minister.

Koloamatangi appeared for the second defendant.

C.A.V.

HUNTER J.: I have discussed this case with the learned Assessor and unfortunately our views differ. I understand that in his opinion right is with the plaintiff and he should succeed. It appears to me, however, that the law is dearly on the side of the defendant and whatever the merits of his case may be the Court's duty is to administer the law. The Court cannot allow sympathy to sway its judgment and even if a seeming injustice is brought about, that is not a matter which the Court can take into consideration if the law governing the position is clear.

The Plaintiff is claiming a tax allotment known as Tou'one, or part of Tou'one, of which the Defendant is the registered holder. As I have said in this Court before the Court should not upset a registration made by the Minister unless it is clear that the Registration has been made by mistake, fraud, or without jurisdiction or for some similar reason. The Minister has a discretion as to whom of several applicants a grant shall be made and unless it be shown that this discretion has been improperly exercised or that the grantee is not legally entitled to the allotment, then the Minister's discretion should not be overruled by the Court.

The facts are as follows: the allotment in question forms part of a larger area of land which had been in the possession of the Plaintiffs family for many years. It was originally heft by his grandfather and I have no doubt on the evidence that the family (including the Plaintiff) cultivated and improved this land and planted it with coconut palms.

The area was subdivided into three 8 ¼ acres allotments, now known as Tou'one 1, 2 and 3 and in 1937 Paula Maka, the Plaintiffs elder brother, was registered as the holder of one of these allotments. Another is now registered in the name of a man called Kutu and the third (the one in dispute) was registered in the name of the Defendant on 10th September, 1952.

In 1947 the Defendant in this case brought an action against a man named Salesi Kautoke claiming an allotment from him from an area of land originally held by one Sulio Malupo. The Judgment of the Court was that this land be divided in three allotments of statutory area, that the Defendant in that case (Kautoke) was to retain the allotment for which he was already registered, and that the Plaintiff (the present Defendant) be given 8 ¼ acres from the remainder. I am satisfied that this land is not the land involved in the present case.

On the 29th August, 1951 the Plaintiff in this case duly applied for an allotment described by him as Tou'one. He said, and I believe him, that it was understood by the Minister that the application referred to the land now in dispute. On the 19th February, 1952 the Defendant applied for the same piece of land.

The Plaintiffs application (Exhibit A) bears the following endorsement: "The applicant is a tax payer of Tatakamotonga and he should have his allotment in that district. There is no indication as to who made this endorsement. I should say here that the land in question is in the Fatumu district, on Crown Land.

On the Defendant's application (Exhibit 13) appears the following endorsement: "In view of the Judgment of the Land Judge in case No. 101/47 on 27/1/48 the Minister of Lands has agreed this day (10/9/52) that no. 3 be registered by V. 'Asipa Ordered both by 'Akau'ola and Tu'ipelehake." this is signed by 'Akau'ola on 10/9/52: 'Akau'ola was then the Minister for Lands.

On the 10th September, 1952 the Defendant was registered as the holder of the land in dispute.

It is contended by the Plaintiff that this registration was made by mistake, as the Court had directed that a different piece of land altogether should be given to the Defendant and that the Minister had no authority to grant him Tou'one I and that therefore this Court should now cancel this registration.

Even if this.is correct, I do not think that it helps the Plaintiff. The Minister had considered his application and refused it, apparently on the ground that he was a tax payer in another district and, in accordance with Section 48 of the Act, should first apply for an allotment in that district. This is a perfectly valid reason for refusing the application and one with which this Court cannot interfere.

That ends the matter. Whether the Defendant was or was not properly registered as the holder of this allotment does not affect the present issue, as I have said above. It appears that the Minister's decision that the Plaintiffs application be refused was a decision he was quite entitled to make. I therefore grant a verdict for the Defendant.

EDITOR'S NOTE: The Plaintiff appealed. On 12. 12. 58 the Privy Council dismissed the appeal. See page 155.