Moa v Faka'osita [1991] TOLawRp 10; [1991] Tonga LR 32 (5 June 1991)

[1991] Tonga LR 32

IN THE COURT OF APPEAL OF TONGA

BETWEEN:

Moa

v

Faka'osita, Ha'alaufuli & Minister of Lands

Court of Appeal
Morling, Ryan and Quilliam, JJ
Appeal No.8/1991

5 June, 1991

Land - registration - principles applicable - for Minister to view in his wide discretion - "resident".
Registration of land - effect of applicant not being resident in hereditary estate - or in Tonga.

The appellant, in the Land Court, succeeded in having cancelled the registration of the first respondent as holder of a tax allotment (see [1990] Tonga LR 195), but the Land Court refused to order that he be registered as the holder. From that refusal this appeal was brought.

HELD:

In dismissing the appeal:-

1. The Land Court was correct in deciding that the appellant was not resident in Tonga, let alone the hereditary estate in question.

2. The time for deciding the question of residency under s.50 Land Act, is when the Court hears the application.

3. For that reason alone the Land Court was entirely justified in refusing to order registration of the appellant;

4. The other (seven) reasons for refusal, given by the Land Court, seemed to be valid reasons for refusal as well.

Statute considered: Land Act (Cap 132) s.50
Cases considered:
Levene v Inland Revenue Commissioners [1928] UKHL 1; [1928] 1 All ER 746
Fox v Stirk [1970] 3 All ER 7

Counsel for Appellant: Mrs Vaihu
Counsel for Respondents: Mr Vaipulu
Mr Whitcombe

Judgment (Morling J)

This is an appeal from a decision of Mr Justice Webster and Assessor S.M. Kupu sitting in the Land Court. The decision was given on 25 October, 1990 and the reasons were published on the 15 December, 1990.

In the proceedings in the Land Court ([1990] Tonga LR 195) the present appellant sought an order cancelling the registration of the first respondent as holder of a tax allotment called Angitoa being Lot 44 Block 220/160. That part of the application to the Court succeeded and there is no appeal by the first respondent against the Land Court's order. However, the appellant also sought registration of the land in question in his own name. This part of the application was refused. The reasons given by the Land Court for its refusal included the following (at 199-200):-

(a) on his own evidence the Plaintiff is substantially resident in the US and not in the estate of the Second Defendant at Ha'alaufuli: whatever his residence was when he applied for an allotment, the Court cannot ignore his present residence
(d) the Minister or Deputy Minister has a wide discretion in deciding who should be granted allotments and this Court should only interfere if it is clearly shown to have been exercised on wrong principles,...
(h) As mentioned in (d) above, the Third Defendant has a wide discretion in making his executive decisions on the granting of allotments. While it is appropriate for the Land Court to review a disputed positive decision by him or settle competing claims, both in the light of the law, it is not a function of this Court to substitute its own discretion for that of the Deputy Minister as to whether the Plaintiff should be granted his allotment or not.

I turn now to consider whether the Court's reasons as set out in para.(a) have been shown to be erroneous. In my opinion, it is quite clear that the reasons set out in para. (a) do not contain any error.

The first matter to be considered in deciding the question of the appellants residence is the time as at which his residence is to be determined. In my opinion it is clear from Section 50 of the Land Act that the relevant time is the time when the application is heard by the Court. I do not accept the submission that it was sufficient for the appellant to have resided in Tonga on the subject hereditary estate in 1974 when he was 16 years old and when the application was first made by his father on his behalf. The Land Court correctly rejected this submission.

It was not in dispute that the appellant was born in 1956 and went to the United States of America with his father in 1980. He obtained employment in the United States and did not return to Tonga until July 1989. He described his visit to Tonga on that occassion as "just a holiday to visit my father". He remained in Vava'u for 10 months until May, 1990 and returned to the United States. He did not again return to this country until very shortly before the commencement of the hearing in the Land Court in October, 1990. In my view, on those facts, it was manifestly open to the Land Court to find that the appellant was not resident in the hereditary estate as at 6 October, 1990.

Although this Court has not called upon Counsel for the Respondents to argue the matter, we have had the benefit of careful written submissions from Counsel for the 3rd respondent. In my view, those submissions correctly state the law, and I am content to adopt them.

In Levene v Inland Revenue Commissioners [1928] UKHL 1; [1928] 1 All ER 746 (House of Lords) Viscount Cave LC said at 749

"The word "reside" is a familiar English word and is defined in the Oxford English Dictionary as meaning to dwell permanently or for a considerable time, to have one's settled or usual abode, to live in or at a particular place."
"...In most cases there is no difficulty in determining where a man has his settled or usual abode, and if that is ascertained he is not the less resident there because from time to time he leaves it for the purpose of business or pleasure.
... Similarly a person who has his home abroad and visits the United Kingdom from time to time for termporary purposes without setting upon establishment in this country is not considered to be resident here ... But a man may reside in more than one place. Just as a man may have two homes - one in London and the other in the country - so he may have a home abroad and a home in the United Kingdom, and in that case he is held to be resident in both places.

In Fox v Stirk [1970] 3 All ER 7 where the English Court of Appeal was considering the word "resident" and applied Levene's case Lord Denning M R. said at 12

"I think a person may properly be said to be "a resident" in a place when his stay there has a considerable degree of permanence "

Counsel for the appellant concedes that there is no evidence in the Appeal Book which would establish that whilst in the United States the appellant maintained any connection with Tonga, other than his recognition of it as his place of birth and as the place to which he hopes ultimately to return. This evidence falls far short of establishing that he was a resident of this country as at October 1990. He thus cannot be said to have been a resident of the United States and of Tonga as at 6 October 1990.

In my view the Land Court was correct in deciding, as it did, that the appellant was not resident in the estate of the 2nd respondent. For that reason alone, I think the Land Court was entirely justified in dismissing that part of the application in which the appellant sought registration of the land in his own name.

What I have so far said makes it unnecessary to consider the other grounds given by the Court for its decision. However, I should say that they seem to me to be valid and I think the application was properly refused on the additional grounds. In deciding whether registration of the land should be given to the appellant it was well within the Minister's dicretion to take into account the appellant's prolonged absence from Tonga.

For those reasons I would propose that the appeal be dismissed with costs.

Ryan J

I concur

Quilliam J

I concur

The appeal will be dismissed. The appellant must pay the costs of the first and second respondents. There will be no order as to the costs of the third respondent.