Langi v Lafo'ou [2001] TOLawRp 22; [2001] Tonga LR 135 (11 June 2001)

IN THE LAND COURT OF TONGA
Land Court, Nuku'alofa

L 1379/99

Langi

v

Lafo'ou

Ford J
27, 28 March, 2 May 2001; 11 June 2001

Land law – succession rules – not to younger brothers
Natural justice – breach thereof – no opportunity to answer concerns

The original landholder was 'Otutoa who died in 1960. His widow, Litia, then held a life interest in the 'api until she died in 1989. The daughter of the landholder then wanted to establish title to the 'api in her second son's name, Tevita. After inquiries it was found that 'Otutoa's eldest brother, 'Aholo, had a son, Finau Folau, who was still alive at the time of Litia's death. Under the provisions of the Land Act (Cap 132) relating to the devolution of allotments, Finau Folau, as the eldest male heir of the body of the deceased holder's eldest brother, 'Aholo, was the person entitled to succeed to his late uncle's estate and on 16 March 1990 he swore an heir's affidavit deposing that he was the rightful heir to the allotment "Polata'ane". In 1991 Finau Folau died before the allotment had been registered in his name. His son elected to take his father's estate rather than "Polata'ane". Tevita's application for a deed of grant to be issued to him was then resurrected. Proof of age was obtained and on 23 July 1991 the plaintiff paid the necessary survey fees. On 27 February 1992 Hon Fakafanua wrote to the Minister of Lands in Nuku'alofa and advised him of Finau Folau's death and instructed him to proceed with the registration of the deed of grant in the name of the plaintiff. On 28 May 1999 the Minister of Lands issued a deed of grant to Sipanisi Lafo'ou, Tevita's second cousin. Tevita sought orders from the Court cancelling the deed of grant issued to Sipanisi and requiring the Minister to issue a new deed of grant to himself.

Held:

1. Under the Land Act, neither Sipanisi nor his father had any entitlement under the succession rules to the allotment in this case. Succession in this case ended with Finau Folau. The chain did not extend to any of the younger brothers and so Sipanisi had no heir's entitlement under the Act.

2. The Court found that the Hon Fakafanua when acting both as deputy Minister of Lands and later, upon his appointment as Minister of Lands, gave assurances to the plaintiff through his mother that his application had been approved and that the allotment would be lawfully granted to him. When he gave those assurances the Hon Fakafanua was fully aware that there had initially been an heir to the property but, in his mind, that complicating factor had resolved itself when Finau Folau's son elected to take his father's allotment rather than "Polata'ane". The subsequent grant of the allotment to Sipanisi was in breach of the clear assurances which the former Minister had given that the grant would be made to the plaintiff.

3. Under the Land Act the estate holder was bound to grant an allotment to an applicant whose application the Minister had approved subject to the estate holder's right to have the matter reviewed by the Land Court any time within three months of the formal making of the grant. There was no provision that authorised an hereditary estate holder to give a direction to a Minister to cancel an application that had been approved by a former Minister and it was an error of law for the Minister to act on the direction and order the cancellation of the plaintiff's application.

4. The Court found that there had been a breach of natural justice. If there was concern about what the land representative had said to the estate holder away back in 1990 then the plaintiff and his mother should have been given an opportunity to answer those concerns; as they were not, that failure amounted to a breach of natural justice.

5. The plaintiff succeeded in his claim and the Court made an Order setting aside the registration of the first defendant as grantee of the allotment and directing the Minister of Lands to issue a new deed of grant in the name of the plaintiff. The plaintiff was entitled to costs in the action against the Crown.

Cases considered:

Hafoka v Mokofisi (Land Court, L 1202/96, 23 June 2000, Finnigan J)

Hakeai v Minister of Lands [1996] TLR 142 (CA)

Kilifi v Heimuli [1998] Tonga LR 247

Statute considered:

Land Act (Cap 132)

Counsel for plaintiff : Mr Fakahua
Counsel for second defendant : Ms Simiki

Judgment

On 28 May 1999 the Minister of Lands issued a deed of grant to Sipanisi Lafo'ou in respect of a tax allotment on the Island of Foa in the Ha'apai Group. The plaintiff in this proceeding, 26 year-old Tevita Langi, is Sipanisi's cousin. He seeks orders from this Court cancelling the deed of grant issued to Sipanisi and requiring the Minister to issue a new deed of grant to himself. It is a case where the relatives have fallen out over the land dispute. The plaintiff's mother referred to the relatives as "enemies".

The plaintiff, Tevita, was the first witness in the case. He said in evidence that he was too young at the relevant time to be able to give reliable evidence about the relevant background to the case but he indicated to the Court that his mother would be giving evidence on all those matters. He confirmed that he has been looking after the land in question and it is presently being used for the grazing of his stock.

The plaintiff's mother, Monu'ia Langi said that the api in dispute had belonged to her late father, 'Otutoa Pahulu, and it was known as "Polata'ane". She said that it was a very special piece of land and it meant a great deal to her and her family because in 1918 it had been gifted to her father by the late Queen Salote as an "api to" in appreciation for the services he had provided at Her Majesty's wedding the previous year. 'Otutoa had supplied the boat and carried all the food from the citizens of Foa to the village of Pangai on the main island of Lifuka where the wedding feast was held. 'Otutoa subsequently became the town officer. He died in 1960.

Monu'ia said that her father had married three times. From the first marriage there was a son who died without issue and a daughter, Uluaki, who lived in the States but she did not have any male issue. There was no issue from 'Otutoa's second marriage and Monu'ia was the only issue from her father's third marriage to Litia. After 'Otutoa's death in 1960, Litia then held a widow's life interest in the api until her death on 8 June 1989. This case is concerned with what happened after Litia's death.

The day after Litia's funeral Monu'ia went to the office in Ha'apai of the Governor and deputy Minister of Lands, Hon Fakafanua, and made inquiries about having title to her late father's api granted to her second son, the plaintiff. As Tevita was not yet 16 years of age, however, she was advised to make the application in the name of her eldest son, Hiliau. She followed this advice but subsequently, after Tevita turned 16, the application was, again on the Governor's advice, changed back into Tevita's name.

Armed with the application form from the Governor's office, Monu'ia then set out to obtain approval to the grant of the 'api from the Tongatapu based estate holder. This process took time. The hereditary estate holder was the late Hon Tu'ipelehake. Initially he told her to return to Ha'apai and bring the land representative down to see him. Monu'ia dealt with the land representative in Ha'apai, Kelepi Tamale, and in September 1990 she traveled back to Tongatapu with Kelepi to meet again with Tu'ipelehake. Tu'ipelehake signed the plaintiff's application for a grant on 6 September 1990 and it was witnessed by his land representative. Monu'ia then returned to Ha'apai but when she took the completed application form into the Governor's office for processing she was told by one of the clerks in the office that they had received a telephone call to advise that the application was unlawful.

To understand why the application was alleged to be unlawful, it is necessary to go back to the family tree which was produced in evidence by the plaintiff.

Monu'ia's father 'Otutoa had been the holder of the api. He had one son who had died without leaving issue but 'Otutoa had several brothers, all of whom also predeceased his widow, Litia, but some of his brothers did have issue who were still alive at the time of Litia's death. 'Otutoa's eldest brother, 'Aholo, had a son in this category called Finau Folau.

Under the provisions of the Land Act (Cap 132) relating to the devolution of allotments, at the time of the widow's death in June 1989, Finau Folau, as the eldest male heir of the body of the deceased holder's eldest brother, 'Aholo, was the person entitled to succeed to his late uncle's estate and on 16 March 1990 Finau Folau swore an heir's affidavit deposing that he was the rightful heir to the allotment "Polata'ane".

That was the background to the allegation of illegality. Monu'ia had been aware that Finau Folau claimed to be the heir to the api but she was obviously either not familiar with the relevant provisions of the Land Act or not prepared to accept the legal position and she was unwilling to accept Finau Folau's entitlement. She and Finau Folau were not on speaking terms over the matter.

It appears that when Hon Tu'ipelehake signed the plaintiff's application form in September 1990 he had no knowledge of Finau Folau's heir's claim. He was simply told by his land representative that there was no existing heir. Whether or not there was an heir to the allotment was undoubtedly a critical factor which the land representative should have been aware of.

The land representative, Kelepi Tamale, gave evidence but he is now 76 years of age and understandably his recollection of events that happened some eleven years ago was somewhat vague. It appears, however, that based on what he had been told by Monu'ia, he was satisfied that there were no heirs to the property and that Monu'ia's son Tevita, as the grandson of the former titleholder, was the appropriate person to be issued with the deed of grant. This was puzzling because it also appears that at least two other relatives including 'Aholo the father of the first defendant in this case, also attended the meeting with Hon Tu'ipelehake but they waited outside the room while the estate holder signed Tevita's application form. The estate holder had even inquired as to who the men were.

Unfortunately, I must conclude that the land representative did not make adequate inquiries at the time and if he had done so, and if he had been familiar with the relevant provisions of the Land Act, then he would have known that he should not have been asking Hon Tu'ipelehake to sign the plaintiff's application form. Tamale should have known that Finau Folau had completed an heir's affidavit. Even if Monu'ia had wrongfully withheld this information from him it is something that he could and should have ascertained from even very basic questioning of 'Aholo or the other relatives who had traveled down from Ha'apai for the meeting.

In all events, officials in the land office immediately became aware that there were two competing claims to the allotment but they also realised, quite properly, that in terms of the succession provisions in the Land Act, recognition could only be given to Finau Folau's claim. They therefore proceeded to put the plaintiff's application to one side while they continued processing Finau Folau's application. It turned out that Finau Folau already had a tax allotment registered in his name and that became a complicating factor because under the Land Act he was permitted to hold only the one tax allotment but that problem was, apparently, being worked through.

Then on 15 March 1991, in terms of this narrative, a very significant development occurred — Finau Folau died. He died before the allotment had been registered in his name. Monu'ia said that after Finau's death she went with his son, Siale Folau, to the Governor's office and the Governor told him that he then had to choose between succeeding to his father's api or to the allotment which is the subject of this proceeding. She said that Siale elected to take title to his father's api and that then left the way open for her son's application to be processed.

The Hon Fakafanua gave evidence. Although, perhaps understandably given the lapse of time, he could not recall the specific meeting with Monu'ia and Siale, he certainly recalled there being the two competing applications for the same api; he recalled Finau Folau's death and then the election by Siale to take his father's estate.

After Finau Folau's death and Siale's election to take his father's api, it appears that Tevita's application for a deed of grant to be issued to him was then resurrected. Proof of age was obtained and on 23 July 1991 the plaintiff paid the necessary survey fees. On 27 February 1992 Hon Fakafanua wrote to the Minister of Lands in Nuku'alofa advising him of Finau Folau's death and instructing him to proceed with the registration of the deed of grant in the name of the plaintiff.

Viliami Tupou, deputy registrar of Lands at Ha'apai, gave evidence and he confirmed that from records held at the office, it appeared that at the time Hon Fakafanua wrote his letter to the Minister of Lands on 27 February 1992 requesting the deed of grant to be issued to the plaintiff, the processing of the plaintiff's application had been completed and he said, in evidence which I accept, that normally in that situation he would have expected the deed of grant to be issued to the plaintiff in about 1993/94.

Hon Fakafanua told the Court that he was appointed Minister of Lands in 1993 and he held the position for several years. Initially after his appointment he was under the impression that everything relating to the plaintiff's application had been completed and he assumed that the plaintiff had received the deed of grant to the allotment. Unfortunately for the plaintiff, it was not that simple.

Monu'ia's evidence, which I accept, was that on a number of occasions over the years she called at the Governor's office in Ha'apai and checked with both the Hon Fakafanua and his clerk as to whether the deed of grant had yet been issued in her son's name but invariably she was told that the office was awaiting advice or instructions "from Tonga". She even saw Hon Fakafanua when he visited Ha'apai after his appointment as Minister of Lands and on one of those occasions she recalled him telling the clerk to follow the matter up with "Tonga" but still nothing happened. Hon Fakafanua recalled Monu'ia's visits but he could offer no explanation for the delay in registration of the plaintiff's application. He said that normally when he wrote to Tongatapu (the Minister's office) instructing them to proceed with a registration, they acted immediately on his instruction. In this case, however, "Tonga" was silent.

Unfortunately, there is a complete gap in the evidence as to what happened to the plaintiff's application between February 1992 and the end of 1996. For some reason, which has not been satisfactorily explained to the Court, it appears that during this period the application simply remained filed but unactioned somewhere in the lands office at Nuku'alofa. The next development came towards the end of 1996. Monu'ia heard rumours that the api had been transferred into the name of Sipanisi Lafo'ou (the first defendant). When she inquired at the Governor's office she found that the transfer had not yet taken place but there certainly was an application on file from Sipanisi dated 25 September 1996 which had, like the plaintiff's application, been signed by the hereditary estate holder, Hon Tu'ipelehake. The estate holder had signed the application form on 19 October 1996.

Monu'ia then described the steps she took to try and stop Sipanisi's application from being processed. This included having an obviously somewhat heated conversation with Sipanisi's father, 'Aholo, and subsequently causing a solicitor's letter to be forwarded to the Governor. Her actions, however, were of no avail. A deed of grant in the name of Sipanisi Lafo'ou was eventually issued on 28 May 1999.

Sipanisi is related to the plaintiff. The family tree produced by the plaintiff showed that the landholder, 'Otutoa, had one sister and five brothers. The eldest brother was 'Aholo (the same name as Sipanisi's father). 'Aholo's son was Finau Folau who died in March 1991. 'Otutoa's second and third brothers had died earlier without any issue but his fourth brother, Lafo'ou, had left issue, including a son, 'Aholo, who was Sipanisi's father.

In other words, to put the relationship in context, the first defendant, Sipanisi, is 'Otutoa's (the landholder's) great nephew whereas the plaintiff, Tevita, is 'Otutoa's grandson.

Under the Land Act, neither Sipanisi nor his father had any entitlement under the succession rules to the allotment in this case. The decision of Ward CJ in Kilifi v Heimuli [1998] Tonga LR 247, makes it clear that succession in this case ended with Finau Folau. The chain did not extend to any of the younger brothers and so Sipanisi had no heir's entitlement under the Act.

On 17 June 1997 the hereditary estate holder wrote to the Assistant Registrar for Lands at Ha'apai. It was an important letter. It began by referring to a letter he had received from the assistant registrar dated 11 February 1997 (which, unfortunately, was not produced). The letter from the estate holder read:

"17 June 1997

Dear Sir,

I have received your letter LSNR 2'2'97 dated 11/2/1997.

The letter referred to the allotment formally held by the now deceased widow Litia 'Otutoa of Faleloa. I would like to let you know through this my letter that it is my wish that the application by Tevita Niuafe Langi be cancelled. I accepted that application on 6 September 1990 through incorrect information from the estate holder's representative who informed me that there was no existing heir while there was. Therefore, if the heir refuses to claim entitlement to this entitlement, it is now therefore reverted to the estate holder. I accepted Sipanisi 'Aholo's with the understanding that Tevita Niuafe Langi's application has already been cancelled, according to the letter to you from the Office at Nuku'alofa.

Therefore the application by Tevita Niuafe Langi is now cancelled and the application by Sipanisi 'Aholo now stands.

Sgd Hon Tu'ipelehake."

Hon Tu'ipelehake confirms in that letter that he had accepted Sipanisi 'Aholo's application on the understanding that the plaintiff's application had earlier been cancelled but that was not correct. This fact was confirmed in a subsequent letter produced in evidence dated 17 August 1998 from the Minister of Lands which said in part:

"According to the Assistant Registrar for Lands at Ha'apai (Maka Taungatu'a) the former Governor of Ha'apai, Hon Fakafanua has never agreed to the cancellation of the first application (by Tevita Niuafe Langi) ..."

The plaintiff's application had not been cancelled, it had simply been lying dormant in the Lands Office at Nuku'alofa for several years.

In his letter of 17 June 1997, the estate holder asks the assistant registrar to cancel the plaintiff's application and to proceed with Sipanisi's application. Despite protest by the plaintiff's mother this action was taken. The plaintiff's application was eventually cancelled on 4 February 1999 and the deed of grant was issued to Sipanisi on 28 May 1999. The Court is now being asked to cancel the deed of grant issued to Sipanisi and to order the Minister to issue a new deed of grant to the plaintiff.

The legal position, which has been stated many times by this Court, is that once a valid deed of grant is registered in accordance with the Land Act then it is final unless registration has come about as a result of an error of law (ie: it is contrary to the Act), or as a result of fraud, mistake, breach of the principles of natural justice or of a promise made by the Minister.

In this case counsel for the plaintiff submitted that the only explanation for the lengthy delay in the processing of the plaintiff's application and for its eventual cancellation could be fraud and indeed that concession was made by one of the plaintiff's witnesses, Sione Leki, who has had some sixteen years experience with the Ministry of Lands, including two years stationed at the Ha'apai office. Fraud is a serious charge and the Court is unwilling to make a finding of fraud unless it is strictly proved. I say at once that I do not find any evidence to support a charge of fraud in this case and I do not accept the submission.

I have, nevertheless, reached the conclusion that virtually all of the other elements that can potentially defeat a registered deed of grant do, to a greater or lesser extent, exist in the present case.

First, I have no doubt on the evidence that the Hon Fakafanua when acting both as deputy Minister of Lands and later, upon his appointment as Minister of Lands, gave assurances to the plaintiff through his mother that his application had been approved and that the allotment would be lawfully granted to him. When he gave those assurances the Hon Fakafanua was fully aware that there had initially been an heir to the property but, in his mind, that complicating factor had resolved itself when Finau Folau's son elected to take his father's allotment rather than "Polata'ane".

After the election had been made in about March 1991, so far as Hon Fakafanua was concerned, the plaintiff was the appropriate titleholder. He arranged for the plaintiff's application to be duly processed and he wrote to the Minister's office in February 1992 with his instructions for the deed of grant to be issued in the plaintiff's name. As he told the Court, thereafter he assumed until he found out otherwise, that his instructions had been carried out and that the plaintiff was the new titleholder to the allotment. When Hon Fakafanua gave the assurances in his capacity as deputy Minister of Lands, they carried the same force, by virtue of the provisions of section 21 of the Land Act, as the assurances he later gave when he was Minister.

I have no difficulty in concluding on the facts of this case that the subsequent grant of the allotment to Sipanisi was in breach of the clear assurances which the former Minister had given that the grant would be made to the plaintiff.

Secondly, on 17 June 1997 the hereditary estate holder wrote to the assistant registrar for Lands in Ha'apai purporting to cancel the plaintiff's application and this request was duly acted upon but there is no procedure in the Land Act allowing an estate holder to cancel an application for an allotment that had been approved by the Minister and the plaintiff's application, as I have found, had several years earlier been so approved. In terms of the succession provisions set out in some detail in the Land Act, the hereditary estate holder, apart from having to be consulted by the Minister, has very little say in the devolution process. The legal position was aptly summarised by Finnigan J in the recent unreported decision of Hafoka v Mokofisi (Land Court, L 1202/96, 23 June 2000):

"Where the land is on an hereditary estate, as became apparent in 'Ameleki, the rights and the role of an hereditary estate holder in the process of allocating land are limited ... Upon reversion ... it is still the Minister who once again allocates the allotment. The allotments of estates otherwise devolve in a clearly defined pattern that is set out in Part IV Division VII of the Act, Ss 80-88. The only persons involved in succession to allocated allotments are the family of the land holder and the Minister. The Minister is bound by the Act and his actions are subject to the approval of the Cabinet."

Under section 34 of the Land Act the estate holder is bound to grant an allotment to an applicant whose application the Minister has approved subject to the estate holder's right to have the matter reviewed by the Land Court any time within three months of the formal making of the grant.

There is no provision in the Land Act authorising an hereditary estate holder to give a direction to a Minister to cancel an application that had been approved by a former Minister and it was an error of law for the Minister to act on the direction and order the cancellation of the plaintiff's application.

Thirdly, in my view, the facts of this case give rise to a very serious and fundamental breach of the principles of natural justice. The plaintiff had had a valid application which had been approved by the Minister, awaiting formal registration in the Lands office for a number of years. Without any consultation whatsoever, a subsequent Minister then proceeded to cancel that application and issue a deed of grant to the first defendant who, in the context of the whole history of the case, can only be described in colloquial terms as very much a "Johnny come-lately".

The natural justice principle has been well expressed in the following passage from the judgment of the Court of Appeal in Hakeai v Minister of Lands [1996] TLR 142:

"It is clear law that a person whose rights, interests or legitimate expectations are imperilled 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. This is what is known as natural justice. Here, Mauao ... was not given any opportunity to argue that he should have priority before the purported grant was made to the appellant. That was legally wrong. If he had been given the right to comment, this whole matter might well have ended then. It is to enable both sides of the case to be considered that the principle of natural justice exists."

The same principles apply, a fortiori, to the facts of the present case. If there was concern about what the land representative had said to the estate holder away back in 1990 then the plaintiff and his mother should have been given an opportunity to answer those concerns. They were not and the failure amounted to a breach of natural justice.

In some situations when there is a finding of breach of natural justice it would be appropriate to remit the matter back to the Minister for his reconsideration. In the present case, however, there is an overwhelming reason why that course should not be followed and that relates to the conduct of the first defendant in relation to this whole proceeding.

The first defendant, Sipanisi Lafo'ou has taken no interest whatsoever in the case. He was not represented; he did not even file a statement of defence. Just why he adopted that attitude is not something that was canvassed in evidence but his total indifference to the claim has certainly not endeared the Court to his cause, whatever that might be. Perhaps his non-appearance is a silent acceptance of the merits of the plaintiff's claim.

For the reasons I have stated, regrettably at some length, the plaintiff has succeeded in his claim. I make an Order setting aside the registration of the first defendant as grantee of the allotment and I direct the Minister of Lands to issue a new deed of grant for Lot 81 Block 156/141 Tohi 238 Folio 31 in the name of the plaintiff.

The plaintiff is entitled to costs in the action against the Crown to be agreed or taxed.