Ongosia v Tongia [2006] TOLawRp 23; [2006] Tonga LR 239 (16 August 2006)

IN THE LAND COURT OF TONGA

Ongosia anors

v

Tongia anors

Land Court, Vava'u
Webster CJ and Land Assessor Tofu
L 17/2005

10 and 11 May 2006; 16 August 2006

Land law – boundary shifted due to erosion – claim for eviction dismissed

The plaintiff was the registered holder of a tax allotment at Hinakauea Beach, Pangaimotu, Vava'u. He sought an order evicting the first and third defendants from part of the foreshore in front of his allotment. The defendants claimed that they were granted a permit to use that part of the foreshore (a strip of grass about 20 -- 30 m wide adjacent to the sandy beach) by the then Minister of Lands in 1994. Prior to then the beach area referred to in the permit had been used for some 10 or 11 years by another occupier for a tourist business. The defendants also held a licence from the Tourism Council to run Tongan feasts on the beach area covered by the permit. A dispute arose because the sea had eroded soil in the area and the original 20 -- 30 m grass strip had became part of the foreshore in terms of Clause 109 of the Constitution which meant that the land used by the defendants for their tourism business overlapped part of the plaintiff's allotment. The defendants raised the issue of limitation under section 170 of the Land Act and the fact that the plaintiff's tax allotment exceeded the statutory size for tax allotments. The issue before the court was the question, as a result of the landward movement of the high watermark due to erosion over the years, who had the right to the area where the part of the foreshore to which the defendants had been given a permit overlapped the plaintiff's allotment.

Held:

1. The intention in clause 109 of the Constitution and in Parliament, as seen in section 113 of the Land Act, was that all beach frontage in Tonga 15.24 m or 50 feet above the high watermark belonged to the Crown, one reason for which was to give the public unrestricted movement and use of the beachfront area without interference from adjacent landholders.

2. At common law, as the medium, high and low water marks shifted, so the boundary of the land shifted also. The plaintiff's claim for eviction of the defendants from the land in question could not succeed and was dismissed.

3. The 10-year limitation period in section 170 of the Land Act was to be strictly applied when the limitation period had expired even where the grant of an allotment may at one time have been open to challenge. Whatever the status of the defendant's possession of the land, it could not be challenged by the plaintiff because the defendants had been in adverse possession for over 10 years.

4. Statutes should be interpreted so as to avoid manifest injustice or unreasonableness in a way which was consistent with the purpose of the statute and, accordingly, sections 7 and 49 of the Land Act prescribing the maximum areas for a tax allotment and a town allotment should be interpreted as rendering void only the area of a grant which exceeded the area permitted.

Cases considered:

A-G v Chambers [1859] EngR 4; (1859) 4 De G & J 55; [1843-60] All ER Rep 559 (CA)

Arkansas v Tennessee [1918] USSC 38; (1918) 246 US 158

Arkansas v Tennessee [1970] USSC 42; (1970) 397 US 88

Attorney-General v Chambers [1859] EngR 4; [1843-60] All ER Rep 559 (CA)

Attorney-General of Southern Nigeria v John Holt and Co (Liverpool) Ltd [1915] AC 599

Attorney-General (Southern Nigeria) v J Holt & Co (Liverpool) Ltd [1914-15] All ER Rep 444

Auty v Thompson [1903] NZGazLawRp 99; (1903) 5 GLR 541

Baxendale v Instow Parish Council [1981] 2 All ER 620 (ChD)

Brighton & Hove General Gas Co v Hove Bungalows Ltd [1924] 1 Ch 372

District Land Registrar of Wellington v Snow [1909] NZGazLawRp 122; (1909) 29 NZLR 865

Fifita v Minister of Lands & Fakafanua [1974-80] Tonga LR 1 (PC)

Government of the State of Penang v Beng Hong Oon [1972] AC 425; [1971] 3 All ER 1163 (PC)

Hazlett v Presnell [1982] HCA 58; [1981-2] 149 CLR 107 (HC)

Hull and Selby Rail Co, Re [1839] EngR 133; (1839) 5 M & W 327

Humphrey v Burrell [1951] NZLR 262 (SC & CA)

Lokotui v Fifita [1992] TLR 18 (CA) at 20

R v Joyce (1905) 25 NZLR 78

R v Lord Yarborough [1824] EngR 199; (1824) 3 B & C 91

Smart & Co v Suva Town Board [1893] UKLawRpAC 14; [1893] AC 301 (PC)

Southern Theosophy v South Australia [1982] 1 All ER 283 (PC)

To'a v Veikune [1974-80] Tonga LR 107 (PC)

Vaka'uta v Vaka'uta & Minister of Lands [1974 - 1980] Tonga LR 26

Ward's Case [1980] HCA 11; (1980) 142 CLR 308

Statutes considered:

Constitution of Tonga Act (Cap 2)

Land Act (Cap 132)

Counsel for plaintiffs: Mr Vaipulu
Counsel for defendants: Mr Taufaeteau

Judgment

Preliminary

The 1st Plaintiff Mr Soane Ongosia is the registered holder of a tax allotment on the Royal Estates at Hinakauea Beach, Pangaimotu, Vava'u. He seeks the eviction of the 1st and 3rd Defendants Mr 'Afele Tongia and Mrs Lesila Tongia from part of the foreshore in front of the allotment, which is situated beside the beach. The 1st and 3rd Defendants claim that they were granted a permit to use that part of the foreshore by the then Minister of Lands in 1994.

As I understand it the 2nd Plaintiff is the father of the 1st Plaintiff and was said to have transferred the tax allotment to the 1st Plaintiff, though neither gave evidence and there was no evidence of that; and the 3rd Plaintiff leased part of the tax allotment from the 1st Plaintiff, though again no evidence of that was led at this hearing. The 2nd Defendant is the son of the 1st and 3rd Defendants.

By agreement of the parties, this hearing related only to the question of the status of the land in dispute, not to any issues of responsibility or compensation for the disputes between the parties in November–December 2005. As I understand it the 2nd and 3rd Plaintiffs and the 2nd Defendant are not involved in this part of this action about the status of the land and are only parties to it following the events of November-December 2005.

Evidence and submissions

The Plaintiffs led evidence from Mr Makafilia Taungatu'a Mafi, Land Registrar for Vava'u; Mr Paula Moa Lo'amanu, Government Surveyor for Vava'u; and Mrs Elisi Faleola, Acting Officer-in-Charge of Tourism, Vava'u. The Defendants led evidence from the 3rd Defendant, Mrs Lesila Tongia. Both parties also filed documents. After the evidence there was a site visit to the land in dispute at Hinakauea Beach, Pangaimotu. The following day submissions were made by Counsel in support of their cases; and also by Crown Counsel in the public interest

Further hearing

On 26 May, at the end of the Vava'u circuit, I held a further hearing with Counsel and told them of my provisional view (subject to reconsideration on studying further legal authorities on my return to Nuku'alofa) that Clause 109 of the Constitution relating to beach frontage had to be respected, and that the legal authorities indicated that the boundary of the land shifted if the medium high and low water marks shifted, so that the Plaintiffs' claim was likely to be unsuccessful.

I also narrated what the Assessor had told me after the hearing, namely that he was formerly District Officer for Neiafu and that previously the beach extended out 50 feet from the edge of the grass (where the boundary of this allotment is), but became eroded by the removal of sand from it. People wanting to get to the beach had been unable to reach it because the Plaintiffs' family had told them they were trespassing, so the then Governor of Vava'u, Dr Ma'afu Tupou (who was also His Majesty The King's Representative for Royal Estates in Vava'u), had instructed that the road to the north of the land where the Defendants are was to be made (as a Government road) so that the public could get to the beach, with the result that the boundary of the 1st Plaintiff's allotment had been cut. I said that this appeared to tie in with the legal position, but I finished by allowing Counsel until 12 June to make further written submissions on the provisional views of the Court and these matters.

Plaintiffs' further submissions

As a result of that order, Counsel for the Plaintiffs submitted that the Land Assessor erred in saying that the road between the water and the adjacent land was a public road and it was paved because the Plaintiffs have stopped the people from using the beach. The Plaintiffs said that it was the Defendants stopping the people who were operating the other side of the beach for a similar purpose to theirs, and it was just paved for access. Furthermore it had never been mentioned in evidence that this road was a public road and according to the evidence of the Land Registrar there was no evidence of such road it was only the land belonging to the 1st Plaintiff. The evidence of the surveyor also never mentioned that the road was a public road and the Plaintiffs submitted that this road is within the boundaries of the 1st Plaintiff's land.

Counsel for the Plaintiffs also submitted that although the allotment is in excess of the statutory area the Land Registrar in evidence stated that with the King's Estate the landholders are to stay with the original subdivisions made, however section 91 of the Land Act provides that the Minister may give 21 days' notice to such person informing him that he intends to subdivide such land. The Landowner had approached the Palace Office for a subdivision, with 5 acres each to be given to him and his younger brother, but was told to stay as it is.

In relation to the beach frontage and Clause 109, Counsel for the Plaintiffs submitted that all beach frontage belongs to the Crown from 50 feet above high water mark and it is lawful for the Government to lease any portion of the beach frontage for erecting a store or wharf and the Minister of Lands with the consent of the Cabinet shall have power to grant such lease. Counsel submitted that the Plaintiffs' claim be allowed for the reasons (i) that there has been no evidence of such a lease and that no application for any lease have been submitted to the Minister of Lands as stated in Clause 109 of the Constitution; (ii) and the consent of Cabinet have never been granted; (iii) that there is still land in the beach frontage to be used by the public; (iv) and it is respectfully submitted that the allotment with its original boundaries be established and that the Government had not granted any lease.

Defendants' further submissions

Counsel for the Defendants submitted that there were 2 important matters: (1) that the tax allotment is greater than the statutory size under section 49 of the Land Act, which states that grant in excess is void. That had not been brought up in his main submissions, but in the Defendants' Statement of Defence in paragraph 1, it stated that 10A 1R 24P exceeds the area permitted by law for a tax allotment; (2) with reference to the limitation period of 10 years, to say that the Plaintiffs did not stop the Defendants because they thought it was Crown land is no defence, as barring of a claim within the time prescribed by statute is regardless of knowledge of claimants: Vaka'uta v Vaka'uta & Minister of Lands [1974 -1980] Tonga LR 26.
Under Clause 109 of the Constitution all beach frontage belongs to the Crown, so that there is no interference from adjacent landholders. In other words the right of the public over the foreshore follows the foreshore wherever it may be at any material time. Section 23 of the Land Act gives the Minister of Lands power to define boundaries. These all tie in with what the Assessor said about the Minister of Lands arriving at a decision to make a Government road north of the Defendants' land, thus cutting the boundaries. Under Clause 109 of the Constitution, the supreme law, together with the Minister's power under the Land Act and the size of the tax allotment in excess gave the Minister of Lands authority to do what he had done.
Counsel for the Defendants also submitted that it is important to note that the area occupied by the Defendants in most part is approximately within 50 feet above high water mark. Therefore the Defendants contend that the Constitution is paramount and the land occupied is beach frontage, which belongs to the Crown.

Conclusion on further submissions

In view of these further submissions for the Plaintiffs I considered holding a further hearing so that I could hear evidence to resolve the factual difference between what the Assessor advised me and what is now said for the Plaintiffs. But, having considered the further legal authorities now available to me in Nuku'alofa (see Applicable law below), I came to the view that the case should be decided without any reference to the Assessor's factual account and I make no findings in fact in relation to that.

Primary facts

The 1st Plaintiff is the registered holder of a tax allotment on the Royal Estates at Hinakauea Beach, Pangaimotu, Vava'u. The tax allotment is situated beside the beach, being Block 213/157 Lot 31. There were some discrepancies in evidence about the area of the tax allotment: in the Statement of Claim it was said to be 10A 1R 24P, but in evidence the Land Registrar said that on the old plan after '10A' the writing was scratched out; while on the re-survey plan it is shown to have an area of 10A 0R 26.5P. In light of this decision the actual area is not crucial and I hold it to be that most recent measurement of 10A 0R 26.5P. The tax allotment was registered on 18 October 1935 in name of the 1st Plaintiff's grandfather Mosese Ongosia. It was transferred to the 1st Plaintiff on 25 November 1992. However the Land Registrar gave evidence that in the Land Register there is no record of any document or deed of grant, and only the Register Book has the 1st Plaintiff's name in it.

Beyond what is stated above, no evidence was given of any written description of the tax allotment in the Land Register. The Court was shown an old plan of the Royal Estates at Pangaimotu, showing the allotment on it, but the Plaintiff did not provide the Court with a copy of that. However the Court was given a copy of the plan resulting from a re-survey in the 1950s, which showed the boundaries marked by survey pegs. That plan is attached as an Appendix to this decision. The Government Surveyor Mr Paula Lo'amanu had searched for these survey pegs at the end of September 2005 when the controversy first arose between the parties and had found all but 4 of them (3 on the side next the road and 1 on the side next the beach). He was therefore able to show the Court during the site visit exactly where the boundaries of the allotment ran, particularly on the side adjacent to the beach.

On 22 July 1994 the Governor of Vava'u (as Minister of Lands) granted a permit to the 1st and 3rd Defendants, which stated:

HINAKAUEA AT PANGAIMOTU, SIDE TO THE BEACH ON 210 THE TAX ALLOTMENT THAT BELONGED TO MOSESE ONGOSIA, HIS MAJESTY'S ESTATE AT PANGAIMOTU

This is the Government's beach that was permitted to Kelepi Piukala to operate a Tourist Business thereon, and he has abandoned this Government beach.

I therefore grant permission to 'Afele Tongia and Lesila Tongia to care for and manage Hinakauea Beach commencing today 22nd July, 1994. To prepare for greeting tourists to the Vava'u District.

(Sgd) Dr S Ma'afu Tupou

Minister of Lands, Survey and Natural Resources

As stated in that permit, the beach or foreshore in front of the allotment had before that been used for a tourist business by Mr Kelepi Piukala for some 10 or 11 years. The 3rd Defendant gave evidence, which was not seriously challenged in cross-examination and which I accepted, that she and her husband the 1st Defendant had since 1994 used the foreshore – more accurately a strip of grass about 20-30 m wide adjacent to the sandy beach – for a tourist beach and had built several fales on that strip, although some had been partially destroyed by Cyclone Uaqa. They held barbecues there and had at one time had 2 residential fales for tourists.

The 3rd Defendant accepted in cross-examination that the permit did not include the 1st Plaintiff's tax allotment, but the extent of the tax allotment is of course the whole issue in this case. There was no evidence by or for the Plaintiffs to contradict the evidence from the 3rd Defendant of the occupation by her and her husband the 1st Defendant of the land under dispute, although the Plaintiffs' Counsel submitted that the Plaintiffs did not attempt to stop the 1st and 3rd Defendants' activities at the time because they thought they were being carried out on Government land on the foreshore.

Although there was evidence from Elisi Faleola that the tourist accommodation licence (which appeared to be different from the permit issued above) issued to the 1st and 3rd Defendants by the Tourism Council was currently on hold, she was equally clear that the licence issued to the 1st and 3rd Defendants to run Tongan feasts was still up-to-date and current. Therefore it cannot be said that the 1st and 3rd Defendants have stopped using the beach for greeting tourists, nor that the permit has lapsed.

It is important for an understanding of this case that in Tonga under Clause 109 of the Constitution and section 2 of the Land Act the term 'foreshore' includes a strip 15.24 m or 50' above the high-water mark, in addition to land between the high- and low-water marks.

This dispute and case has arisen because the land on which the 1st and 3rd Defendants operate their tourist business, which is undeniably now within the definition of the foreshore in terms of Clause 109 of the Constitution (as described fully below), overlaps part of the 1st Plaintiff's allotment according to the re-survey plan and pegs. The Government Surveyor Mr Paula Lo'amanu said that the sea had eroded the soil, and he had heard that people used to take sand from the beach (the Court was able to take that hearsay evidence into account in terms of Land Court practice: To'a v Veikune [1974-80] Tonga LR 107 (PC).

The Court accepted the evidence of Mr Lo'amanu, as amplified during the site visit, which showed that the 1st Plaintiff's allotment as marked by survey pegs did overlap onto the present foreshore (ie land now within 50 feet or 15.24 metres of the high water mark of ordinary tides). Some of the Defendants' buildings have therefore been built on ground which is part of the tax allotment as marked, but may be part of the present foreshore, and some may even be on the allotment beyond the present foreshore. The boundary of the tax allotment as surveyed actually goes through some of the Defendants' buildings, as shown on the plan in the Appendix. It was equally clear at the site visit that during the Plaintiffs recent work on the land they had trespassed onto part of the beach which was outwith even the surveyed boundaries of the allotment and on the Defendants' part of the beach, and the Plaintiffs had moved a pile of earth and rubble onto the Defendants' part of the beach.

Injunction

Prior to the main hearing of this case, on 25 November 2005 I had granted an injunction restraining the Defendants from obstructing construction works on the areas not occupied by them, and from threatening the Plaintiffs. The Plaintiffs then on 6 December applied for an order for committal of the Defendants for alleged breaches of that injunction. On 23 December I held a hearing of that application at Neiafu, and also visited the site at Hinakauea Beach. At the same time I considered the Defendants' application to vary the injunction of 25 November and their opposition to the application for committal; and I explained to the 2nd Plaintiff and all the Defendants personally the importance of obeying the injunction until a full hearing of the case could take place, and the likely penalty in the case of a failure to obey it. I then varied the injunction to the effect that:

a. Both sides accepted that the Plaintiffs are to keep to the ground to the north of the track (ie farthest away from the beach); and the Defendants are to keep to the ground to the south of the track (ie next to the beach) and are not to enter or obstruct the ground of the other side.

b. Both sides may use the track between the 2 pieces of ground, but in doing so are not to obstruct or prevent its use by the other side.

I ordered that the injunction as varied was to endure until the full hearing of the case, and adjourned sine die the application for committal; and at the conclusion of this hearing I continued that position until this decision may be issued.

Applicable law

Foreshore

The issue before the Court is therefore the question, as a result of the landward movement of the high water mark due to erosion over the years, as to who has right to the area where the part of the foreshore, to which the 1st and 3rd Defendants have been given a permit, overlaps the 1st Plaintiff's allotment.

Clause 109 of Constitution provides:

Beach frontage

109. All the beach frontage of this Kingdom belongs to the Crown from 15.24 metres [50 feet] above high-water mark and it shall be lawful for the Government to lease any portion of the beach frontage for erecting a store jetty or wharf and the Minister of Lands with the consent of the Cabinet shall have power to grant such lease.

(Amended Act 23 of 1990)

The Plaintiffs' Counsel accepted that the Constitution is the supreme law of Tonga and that the Court must respect it. That also means that the Court must respect the Crown land on the foreshore, which is also defined in section 2 of the Land Act (Cap 132):

"foreshore" means the land adjacent to the sea alternately covered and left dry by the ordinary flow and ebb of the tides and all land adjoining thereunto lying within 15.24 metres of the high water mark of the ordinary tides;

(Amended by Acts 11 of 1980 and 21 of 1984.)

As noted above, both Clause 109 and the definition in section 2 of the Land Act were amended in recent years to follow metrication, reinforcing the view that they are still regarded as active.

The position on the foreshore is repeated by section 113 of the Land Act , so emphasising that the foreshore is the property of the Crown:

Foreshore the property of the Crown.

113. The foreshore is the property of the Crown and the Minister may with the consent of the Cabinet grant permits to erect stores or wharves or jetties thereon or to reside on any portion thereof or he may with the like consent grant a lease for any of the purposes aforesaid.

In other words the intention in the Constitution and in Parliament has been that all beach frontage must include 15.24 m or 50' above the high water mark, one reason for which is to give the public unrestricted movement and use of the beach front area without interference from adjacent landholders.

At common law, as the medium high and low water marks shift, so does the 330 boundary of the land shift also. This position is narrated succinctly in Halsbury's Laws (4th Ed Reissue) Vol 4(1) (Boundaries) para 921 (Seashore or foreshore):

The boundary of land abutting upon the seashore may vary from time to time, and in the case of a conveyance of land described as bounded by the seashore, then, as the medium high and low water marks shift, so does the boundary of the land shift also; for there may be a movable freehold. This rule applies whether or not the grant of the land adjoining the seashore is accompanied by a map showing the boundary or contains a parcels clause stating the area of the land and whether or not the original boundary can be identified, but a fixed boundary may result if clear words and an intention to do so are shown in the conveyance.

There are a number of authorities on this subject over the years. The first readily available is Attorney-General v Chambers [1859] EngR 4; [1843-60] All ER Rep 559 (CA), where it was stated by Lord Chelmsford LC:

"The law is stated very succinctly by Blackstone, vol 2, p 261, in these words:

"And as to lands gained from the sea, either by alluvion, by the washing up of sand and earth so as in time to make terra firma, or by dereliction, as when the sea shrinks back below the usual water-mark - in these cases the law is held to be that, if this gain be by little and little, by small and imperceptible degrees, it shall go to the owner of the land adjoining. For de minimus non curat lex; and, besides, these owners being often losers by the breaking in of the sea, or at charges to keep it out, this possible gain is, therefore, a reciprocal consideration for such possible charge or loss. But if the alluvion or dereliction be sudden and considerable, in this case it belongs to the King, for the King is lord of the sea."

......

As Lord Abinger said in Re Hull and Selby Rail Co [1839] EngR 133; (1839) 5 M & W 327:

"The principle as to gradual accretion is founded on the necessity which exists for some such rule of law for the permanent protection and adjustment of property."

It must always be borne in mind that the owner of land does not derive benefit alone, but may suffer loss from the operation of this rule, for if the sea gradually steals upon the land, he loses so much of his property, which is thus silently transferred by the law to the proprietor of the seashore."

It is clear from these statements noted in Chambers, both by Blackstone in relation to 'the breaking in of the sea', and by Lord Chancellor Chelmsford in relation to the sea gradually stealing upon the land, that if erosion occurs the land holder may lose his property to the proprietor of the seashore.

A Privy Council case from Fiji is referred to in Halsbury, Smart & Co v Suva Town Board [1893] UKLawRpAC 14; [1893] AC 301 (PC), but it contains no reference to authorities and only the following passage of passing relevance:

"Bearing in mind the almost universally variable character of such a boundary as that described, viz, by the sea-coast from a point on the coast at high-water mark to another point on the coast at high-water mark, (both points being themselves necessarily liable to obliteration, either by accretion or encroachment of the sea or other causes, and the intermediate line of coast being in its nature alterable from similar causes), it appears to their Lordships that it cannot have been the intention of the proclamation [of the Suva town limits] to create a boundary which should have the effect of requiring a fresh proclamation to bring within the town any land which from time to time might from any cause become within the continuous high-water line on the seaward side."

In Attorney-General (Southern Nigeria) v J Holt & Co (Liverpool) Ltd [1914-15] All ER Rep 444 (PC), at 449-451, which traced the law on accretions to and erosion of the foreshore back to the Roman Emperor Justinian, it was stated in the Privy Council in London by Lord Shaw of Dunfermline:

"On the one hand, if erosion had continued, their Lordships do not doubt that it would have been no defence against the claim of the Crown that the foreshore upon the line of inroad had de facto been transferred to the Crown as owners of the sea and its bed within territorial limits, and of foreshore, even although the line of the eroded foreshore had made considerable invasion into the measured plots of lands, as these were described in the titles. Upon the other hand, if accretions had been formed in the course of nature by the silting up of sand, gravel and the like, and these accretions had been of the gradual character to be afterwards referred to, they would have been added to the land, notwithstanding the measurement in square yards or feet which the title contained. The reason of this is not far to seek, and it is substantially to be found in that general convenience and security which lie at the root of the entire doctrine of accretion. To suppose that lands which, although of specific measurement in the title deeds, were de facto fronted and bounded by the sea, were to be in the situation that their frontage to the sea was to disappear by the action of nature to the effect of setting up a stretch of land, it might be yards, feet, or inches, between, the receded foreshore and the actual measured boundary of the adjoining lands, which strip was to be the property of the Crown, and was to have the effect of converting land so held into hinterland, would be followed by grotesque and wellnigh impossible results, and violate the doctrine which is founded upon the general security of landholders and upon the general advantage."

(p 449-450)

The true reason for the principle of law in regard to foreshores is the same reason as the principle in regard to river banks, ie, that it is founded upon security and general convenience.

In Re Hull and Selby Rail Co [1839] EngR 133; (1839) 5 M & W 327 Lord Abinger CB, referring to Lord Yarborough's Case [1824] EngR 199; (1824) 3 B & C 91, said:

"The principle there established is not peculiar to this country, but obtains also in others, and is founded on the necessity which exists for some such rule of law for the permanent protection and adjustment of property."

Re Hull and Selby Rail Co is important not only for the opinions of Lord Abinger and Alderson B, but for the fact of its acceptance of this principle of. the law (settled as between subject and subject) to the relations between the subject and the Crown. Lord Abinger said (5 M & W at p 332):

"In all cases of gradual accretion, which cannot be ascertained from day to day, the land so gained goes to the person to whom the land belongs, to which the accretion is added; and vice versa."

He repeats in different words his main proposition:

"No authority is needed for this position, but only the known principle which has obtained for the mutual adjustment and security of property."

Alderson B, dwelt specially upon the double-sided operation of the rule. He said (ibid, at pp 332, 333):

"I think the question is precisely the same, whether the claim is made against the Crown or the Crown's grantee. Suppose the Crown, being the owner of the foreshore - that is, the space between high and low water-mark - grants the adjoining soil to an individual, and the water gradually recedes from the foreshore, no intermediate period of the change being perceptible, in that case the right of the grantee of the Crown would go forward with the change. On the other hand, if the sea gradually covered the land so granted, the Crown would be the gainer of the land. The principle laid down by Lord Hale, that the party who suffers the loss shall be entitled also to the benefit, governs and decides the question."

In A-G v Chambers [1859] EngR 4; (1859) 4 De G & J 55; [1843-60] All ER Rep 559 (CA), at 564, Lord Chelmsford refers to the double-sided operation of the rule in this way (4 De G & J at p 68) [as quoted above]:

"It must always be borne in mind that the owner of lands does not derive benefit alone, but may suffer loss from the operation of this rule; for if the sea gradually steals upon the land, he loses so much of his property, which is thus silently transferred by the law to the proprietor of the sea-shore."

As to the nature of the accretion, it must be, as already mentioned, so gradual as in a practical sense to be imperceptible in its progress. In R v Lord Yarborough, Abbott 470 CJ, said (3 B & C at p 107):

"Considering the word 'imperceptible' in this issue, as connected with the words 'slow and gradual,' we think it must be understood as expressive only of the manner of the accretion, as the other words undoubtedly are, and as meaning imperceptible in its progress, not imperceptible after a long lapse of time."

This statement of the principle – namely, that the accretion is to be something which is imperceptible in the sense of not being observed in its actual progress - -goes no further than the words of Justinian [quoted at p 450]."

(p 451)

Then in Brighton & Hove General Gas Co v Hove Bungalows Ltd [1924] 1 Ch 372 Romer J found that the general law of accretion applies to a gradual and imperceptible accretion to land abutting upon the foreshore, brought about by the operations of nature, even though it has been unintentionally assisted by, or would not have taken place without, the erection of groynes for the purpose of protecting the shore from erosion (p 390) (applying Chambers and Holt); and that the general law of accretion also applies where the natural accretion, gradual and imperceptible, abuts on land of which the former boundary was well known and readily ascertainable. In the course of the decision Romer J stated:

"The reason given by Blackstone for this rule of law is not generally accepted as being the true one. But the rule itself is settled beyond all question by numerous authorities, of which it is sufficient to mention Rex v Lord Yarborough and Attorney-General v Chambers, where Lord Chelmsford refers to it as the well known rule of law as to the right of land gained from the sea."

(p 381-2)

In the New Zealand case of Humphrey v Burrell [1951] NZLR 262 (SC & CA), at 267, Glesson J, who was upheld on appeal, said in relation to accretions of land, for which the law is the same as for erosions, and which concerned a river, but the legal principles are the same:

"The question is whether this considerable body of land, just under 11 acres in area, is an accretion - that is, whether it has accresced or accreted to defendant's holding. The application of the rule of law which adds to the ownership of riparian lands the property of the soil ad medium filum is not interfered with on account of a specific or scheduled measurement of the land, a delineation on a plan, which measurement, delineation, or colouring does not in fact include any part of the bed of the river: Attorney-General of Southern Nigeria v John Holt and Co (Liverpool) Ltd [1915] AC 599, at 612 and R v Joyce (1905) 25 NZLR 78. It applies to land under the Land Transfer Act, 1915: Auty v Thompson [1903] NZGazLawRp 99; (1903) 5 GLR 541, at 543 and District Land Registrar of Wellington v Snow [1909] NZGazLawRp 122; (1909) 29 NZLR 865.

What constitutes an accretion has received judicial consideration in many cases, the effect of which may be summarized as being that accretion denotes the increase which land bordering on a river undergoes through the silting-up of soil, sand, or other substance, or the permanent retiral of the water. It is necessary that it should have been brought about by a process so slow and gradual as to be in a practical sense imperceptible, by which is meant that the addition cannot be observed in its actual progress from moment to moment or from hour to hour, although after a certain period it may be possible to observe that there has been a fresh addition to the bank or border of the stream. In Attorney-General of Southern Nigeria v John Holt and Co (Liverpool) Ltd [1915] AC 599, Lord Shaw of Dunfermline stated the essential condition of the operation of the rule to be "that the accretion should be natural, and should be slow and gradual - so slow and gradual as to be in a practical sense imperceptible in its course and progress as it occurs" (ibid, 613). It is necessary, therefore, that the increase should have resulted from the action of the water in the ordinary course of the operation of nature, and not from some unusual or unnatural action by which a considerable quantity of soil is suddenly severed from the land of one man and deposited on, or next to, the land of another."

In another case in the Privy Council in London, Government of the State of Penang v Beng Hong Oon [1972] AC 425; [1971] 3 All ER 1163 (PC), more was said by Lord Cross in relation to how the boundary is described, and it was found that there was no sufficient ground for attributing to the words in the indenture 'bounded on the west by the 'sea beach' any meaning other than their prima facie meaning in a legal document, namely, 'bounded on the west by the line of medium high tide':

"It is, of course, well settled that if the boundary of land conveyed is the line of medium high tide the mere fact that the acreage of the land conveyed is given and that the position of the line of the medium high tide at the date of the conveyance can be established - whether or not it is delineated on a plan - will not prevent land which subsequently becomes dry land through the gradual and imperceptible recession of the sea from being added to the land conveyed (see A-G of Southern Nigeria v John Holt & Co (Liverpool) Ltd). But what the defendants say here is that the wording of the conveyance and the plan show that the western boundary was not a fluctuating boundary along the line of medium high tide but a fixed boundary along the line on the plan. If the boundary had been intended to be simply the line of medium high tide there would - it is argued - have been no need to draw any western boundary on the plan. ...

... and it is, their Lordships think, most unlikely that the Crown was intending to retain any land between the land conveyed and the foreshore."

(p 1171)

In Baxendale v Instow Parish Council [1981] 2 All ER 620 (ChD) (referred to in Southern Theosophy below) the respected property lawyer Sir Robert Megarry V-C found that there was no rule of law that a grant of foreshore conveyed only a movable piece of land, namely the foreshore as it was from time to time, since a conveyance of foreshore was capable of conveying either the foreshore as it was from time to time or a fixed piece of land consisting of the foreshore as it was at the time of the conveyance; and although there might be a presumption that a conveyance of foreshore was intended to convey only the foreshore as it was from time to time, what was in fact conveyed by a particular grant depended on the true construction of that grant. In his judgment he said:

"Another instance of movable freeholds, and one that is very much in point in this case, may arise on a grant of foreshore; for such a grant may convey an estate in the foreshore in whatever position it is from time to time. If the sea imperceptibly recedes, the foreshore recedes with it, and so the grantee's land moves too; if the sea encroaches, the foreshore that has been granted moves inland. This has to be considered in relation to the law of accretion and diluvion. Apart from any grant of the foreshore, if there is diluvion the movement of the foreshore appears to divest the frontager of some of his land; for what was his dry land becomes part of the new foreshore, and so belongs to the owner of the foreshore, usually the Crown: see Re Hull and Selby Railway [1839] EngR 133; (1839) 5 M & W 327,333[1839] EngR 133; , 151 ER 139,141. This is justified as being a form of rough justice for the frontager: he should not complain of losing land since he would have gained land if instead the sea had retreated."

In probably the major case in this field in recent years, in Southern Theosophy v South Australia [1982] 1 All ER 283 (PC) (another river case, but the legal principles remain the same) Lord Wilberforce said in the Privy Council in London:

"Before examining the authorities, which are copious and in their result clear, their Lordships find it advisable to consider briefly the nature of the doctrine of accretion. This is a doctrine which gives recognition to the fact that where land is bounded by water, the forces of nature are likely to cause changes in the boundary between the land and the water. Where these changes are gradual and imperceptible (a phrase considered further below), the law considers the title to the land as applicable to the land as it may be so changed from time to time. This may be said to be based on grounds of convenience and fairness. Except in cases where a substantial and recognisable change in boundary has suddenly taken place (to which the doctrine of accretion does not apply), it is manifestly convenient to continue to regard the boundary between land and water as being where it is from day to day or year to year. To do so is also fair. If part of an owner's land is taken from him by erosion, or diluvion (ie advance of the water) it would be most inconvenient to regard the boundary as extending into the water; the landowner is treated as losing a portion of his land. So, if an addition is made to the land from what was previously water, it is only fair that the landowner's title should extend to it. The doctrine of accretion, in other words, is one which arises from the nature of land ownership from, in fact, the long-term ownership of property inherently subject to gradual processes of change. When land is conveyed, it is conveyed subject to and with the benefit of such subtractions and additions (within the limits of the doctrine) as may be take place over the years. It may of course be excluded in any particular case, if such is the intention of the parties. But if a rule so firmly founded in justice and convenience is to be excluded, it is to be expected that the intention to do so should be plainly shown.

The authorities have given recognition to this principle. They have firmly laid down that where land is granted with a water boundary, the title of the grantee extends to that land as added to or detracted from by accretion, or diluvion, and that this is so whether or not the grant is accompanied by a map showing the boundary, or contains a parcels clause stating the area of the land, and whether or not the original boundary can be identified."

(p 287-8)

"In Government of the State of Penang v Beng Hong Oon [1971] 3 All ER 163; [1972] AC 425 it was argued, as here, that the boundary was not a fluctuating boundary along the line of high tide but a fixed one along the line on the plan. But this argument was rejected: it was most unlikely, so their Lordships held, that the Crown was intending to retain any land between the land conveyed and the foreshore."

(p 289)

Finally that decision was considered in the High Court of Australia in Hazlett v Presnell [1982] HCA 58; [1981-2] 149 CLR 107 (HC), where the Court drew attention to the international recognition of the law on this subject (albeit it was dealing with the line of a river, for which the principles are the same) and stated:

"At common law, where land is bounded by a navigable river and the rule ad medium filum does not apply, the title to the land is applicable to the land as it may be from time to time changed by the gradual and imperceptible processes of erosion and accretion. This is so even if there be the means of identifying the original bounds of the property (see, generally, Williams v Booth; Southern Centre of Theosephy Inc v South Australia). This distinction between accretionary and avulsive changes has been recognized in international law (see Hyde, International Rivers, (1918) p 29; Bouchez, "The Fixing of Boundaries in International Boundary Rivers", International and Comparative Law Quarterly, vol 12 (1963), p 789, at pp 799 ff; Oppenheim's International Law (ed Lauterpacht), 8th ed (1955), vol 1, p 533; O'Connell, Inter-national Law, 2nd ed (1970), vol 1, pp 428-430) and accepted by the United States Supreme Court as applicable to the case where a river constitutes the boundary between two States of the Union. Thus in Arkansas v Tennessee ((1970) [1970] USSC 42; 397 US 88,89-90), a case concerned with avulsive changes to the Mississippi River where the state line was the thalweg (the middle of the main or commonly used navigable channel), the Supreme Court repeated the basic rule it had laid down in a previous case concerned with similar avulsive changes:

"This is a classic example of the situation referred to in an earlier case between these States, Arkansas v Tennessee [1918] USSC 38; (1918) 246 US 158 at 173 where we said, 'It is settled beyond the possibility of dispute that where running streams are the boundaries between States, the same rule applies as between private proprietors, namely, that when the bed and channel are changed by the natural and gradual processes known as erosion and accretion, the bound-ary follows the varying course of the stream; while if the stream from any cause, natural or artificial, suddenly leaves its old bed and forms a new one, by the process known as an avulsion, the resulting change of channel works no change of boundary, which remains in the middle of the old channel, although no water may be flowing in it, and irrespective of subsequent changes in the new channel'".

There is nothing in the subject matter or context of the provisions of the Imperial Acts of 1850 and 1855 fixing the New South Wales and Victorian boundary which would justify the conclusion that the ordinary principles of common law as to changes by erosion and accretion were not applicable so as to result in the boundary changing in accordance with such changes to the course or whole watercourse of the river or, more particularly, to the south bank. Nor is the application of those principles excluded by practical considerations. The requirement that erosion and accretion must be gradual and imperceptible (see Southern Centre of Theosophy Case) excludes, from those processes, sudden variations in the boundary or dramatic alterations in the status, rights or duties of individuals. Indeed, acceptance of the ordinary principles as to erosion and accretion is actually in the interests of certainty since the effects of gradual and imperceptible erosion and accretion along the banks of a great river will inevitably be incapable of precise determination. We respectfully agree with Stephen J (in Ward's Case [1980] HCA 11; (1980) 142 CLR 308) that, upon the proper construction of the statutory provisions, the ordinary common law principles of erosion and accretion are applicable. Different considerations and principles apply in respect of the more sudden and observable changes which result from avulsion."

(p 116-7)

Although the foreshore as defined in Tonga includes an additional 15.24 m strip above the high-water mark (as distinct from the definition in English law of the land between high- and low-water marks), the principles to be derived from these cases must still be applicable in Tonga.

Limitation

Section 170 of the Land Act provides:

Limitation of action.

170. No person shall bring in the Court any action but within 10 years after the time at which the right to bring such action shall have first accrued to some person through whom he claims, or if such right shall not have accrued to any person through whom he claims then within 10 years next after the time at which the right to bring such action shall have first accrued to the person bringing the same.

There have been many cases over the years on the application of that section, which has been strictly applied when the limitation period has expired, and even where the grant of an allotment may at one time have been open to challenge, after the limitation period there is no right of action: Lokotui v Fifita [1992] TLR 18 (CA) at 20.

Even if a defendant's occupation of the land was unlawful, with no deeds or documents supported the occupancy, and the applicant holds registered title, that is all irrelevant if the occupation of the land is adverse for over 10 years before it is challenged: Tu'ifua v Tui & Ors [1974-80] TLR 99 (PC) at 100.

Allotment exceeding statutory size

Under section 49 of the Land Act:

Grant in excess of statutory size void.

49. Subject to the provision of sections 46 and 47 hereof it shall be unlawful to grant an allotment in excess of the areas specified in section 7 and any such grant made after the coming into force of this Act shall be null and void:

Provided that to facilitate survey of the prescribed areas a tax allotment and a town allotment may be exceeded by areas of not more than 505.9 square metres and 12.6 square metres respectively.

(Added by Act 17 of 1930; Amended by Acts 12 of 1959, 11 of 1980 and 21 of 1984.)

And under section 91 of the Land Act, referred to by the Plaintiffs' Counsel:

Leases to occupiers of land in excess of statutory area.

91. (1) Whenever it is found that any person is holding land as a tax allotment which is of greater area than the statutory area, the Minister may give 21 days' notice in writing to such person informing him that he intends to subdivide such land and to grant from out of the same to such person a tax allotment of the statutory area.

(2) In any such case it shall be lawful for the person holding land in excess of a tax allotment upon which improvements have been made over a greater area than the statutory area for allotments to receive a lease for all or any part of such improved portion.

(Substituted by Act 9 of 1929.)

However in Fifita v Minister of Lands & Fakafanua [1974-80] Tonga LR 1 (PC) it was held that statutes should be interpreted so as to avoid manifest injustice or unreasonableness in a way which is consistent with the purpose of the statute; and accordingly section 49 should be interpreted as rendering void only the area of a grant which was in excess of the area permitted by section 7 of the Land Act, and not the entire grant.

Grounds of decision

Extent of foreshore

The basic decision in this case has to be made in terms of Clause 109 of the Constitution, the supreme law of Tonga, backed up by the long-standing and internationally recognised law on accretion and erosion by the sea. Under all that law it is clear, as demonstrated above, that the physical situation of the foreshore may vary from time to time if gradual or imperceptible accretion or erosion occurs on the foreshore.

The legal position is well explained by Lord Wilberforce in the Southern Theosophy case. The legal doctrine of accretion and erosion gives recognition to the fact that where land is bounded by water, the forces of nature are likely to cause changes in the boundary between the land and the water. Where these changes are gradual and imperceptible, the law considers the title to the land as applicable to the land as it may be so changed from time to time, based on grounds of convenience and fairness. The doctrine thus arises from the nature of land ownership from the long-term ownership of property inherently subject to gradual processes of change. When land is conveyed, it is conveyed subject to and with the benefit of such subtractions and additions (within the limits of the doctrine) as may take place over the years. If part of an owner's land is taken from him by erosion, it would be most inconvenient to regard the boundary as extending into the water; the landowner is treated as losing a portion of his land.

In this case, from the 1950s when the re-survey of the 1st Plaintiff's tax allotment was done, to the 1990s when the Minister granted the foreshore permit to the 1st and 3rd Defendants, it was clear that there must have been gradual erosion of the beach. Although there was evidence that that may have been partially caused by people removing sand from the beach - ie the intervention of man rather than nature - there was no evidence at all that the change in the foreshore was sudden or was done with the intention of the Defendants or the Government of gaining land from the 1st Plaintiff's tax allotment. Even if sand was taken from Hinakauea Beach over the years, the inference from the evidence of Mr Lo'amanu was that the process of erosion of the beach was slow, gradual and imperceptible; and there was no evidence that a considerable quantity was taken suddenly from the beach.

It cannot have been intended that Clause 109 of the Constitution was only meant to apply to beach frontages as they were at the time of the adoption of the Constitution in 1875. The only sensible interpretation of that clause - considered with the recognised law of property on accretion and erosion - is that it is to apply to the foreshore as it is from time to time.

Under that interpretation the foreshore today extends 15.24 m above the high water mark and so must take in part of the 1st Plaintiff's tax allotment.

Even though the boundary of the tax allotment was marked out with pegs at the time of the re-survey, that cannot take priority over the provision of the Constitution about beach frontage. While there is no description of the tax allotment in the Land Register other than by reference to the plan, it is de facto bounded by the beach, so it is clear on the authority of Halsbury, derived from Holt, Humphrey and Southern Theosophy, that a map or other identification of the original boundary does not stop the law of accretion and erosion operating. As in the Penang case, in this case it is most unlikely that when the tax allotment was being granted from the Royal Estate there was any intention to retain any land between the land conveyed and the foreshore. There is nothing special on the plan in the Appendix to indicate that the true construction of the grant of the tax allotment should be that there were clear words or an intention to create a fixed boundary in these particular circumstances (on which see Baxendale and Southern Theosophy).

Compensation for erosion

In submissions the Plaintiff's Counsel also raised the issue of compensation from the Crown under section 143 of the Land Act or Clause 18 of the Constitution if part of the 1st Plaintiff's allotment has become part of the foreshore. However the land in question would not appear to be land resumed by Crown under Part IX of Land Act (Land for public purposes) in terms of section 143, and section 138 does not appear to be applicable. In any event from the cases referred to above, in particular Chambers, Holt and Southern Theosophy, it would not appear that compensation would be payable as a result of the foreshore moving due to erosion. But if that issue is to be pursued, the Crown would have to be formally joined as a Defendant, or it can be dealt with in a separate action, and it is not appropriate for the Court to deal with it in this decision.

Limitation

The issue of limitation under section 170 of the Land Act was also raised for the Defendants. The evidence showed that the 1st and 3rd Defendants had been in adverse possession of the relevant parts of the land in question which are within the 1st Plaintiff's tax allotment since 1994, but the 1st Plaintiff had not challenged that until this action was raised on 17 November 2005, ie over 10 years after the adverse possession started. Even if that had been unlawful occupation of the land by the 1st and 3rd Defendants, with no deeds or documents supporting the occupancy, it was still an adverse possession and so the 1st Plaintiff cannot now challenge it. But in fact the 1st and 3rd Defendants possession was supported by a document, a permit from the Governor on behalf of the Government, the proprietors of the foreshore, giving the 1st and 3rd Defendants some legitimacy in their occupation of the land, albeit not as strong a title as if they held a formal lease. Even if the Governor's permit had lapsed, as claimed by the Plaintiffs, due to the tourist accommodation licence being put on hold, that would not matter, as they have been in adverse possession during the relevant period of 10 years.

It is quite clear that section 170 is not limited to claims eg by competing allotment holders, but prohibits any action outwith 10 years. Whatever the status of the 1st and 3rd Defendants possession of the land, it cannot now be challenged by the 1st Plaintiff because of the 1st and 3rd Defendants' adverse possession of that piece of his tax allotment for over 10 years. This action was not brought within 10 years of that date in 1994, and so is also barred by section 170 of the Land Act.

Section 170 is very clear that the date from which the limitation period starts to run is the date from which the right to bring the action first accrued, and does not depend on whether or not the 1st Plaintiff had actual knowledge of the adverse possession, although on the facts there was a clear inference that he and his family must have had such knowledge: if, as submitted for the Plaintiffs, he did not attempt to stop the 1st and 3rd Defendants' activities at the time because he thought they were being carried out on Government land on the foreshore, that tends to support the Defendants' case, rather than contradict it.

Excess over statutory size

Although the 1st Plaintiff's tax allotment clearly exceeds the statutory size, it is not clear what the effect of the movement of the foreshore will be on it in terms of area, and whether the reduced allotment (after the southern boundary has been re-surveyed, as I order below) will still exceed the statutory size. As there are ample grounds, as referred to above, to enable me to decide this case, it is thus not necessary for me to deal with the submission for the Defendants that the grant of the allotment is void as to the excess, particularly as no particular area of excess has been identified for such reduction.

Equity

It is also not necessary for me to consider the submissions for the Defendant in relation to equity in order to decide this claim.

Conclusions

Therefore, for all these reasons, this claim by the 1st Plaintiff, in so far as it relates to the status of the land in question, and includes the claim for eviction of the Defendants from the land in question, cannot succeed and it is dismissed. The remainder of the Plaintiffs' claims, and the Defendants counter-claims if allowed out of time, all as relating to the events of November-December 2005, can be heard at a future Vava'u circuit.

To finalise the matter I shall order that within 3 months of this date (a) the Minister of Lands is to re-survey the 1st Plaintiff's allotment so that the southern boundary (next to the beach) follows the line of the foreshore (ie 15.24 metres above the high-water mark); and (b) in terms of section 149(1)(a) of the Land Act, the Minister is then to redefine the area and boundaries of the 1st Plaintiff's tax allotment at Hinakauea Beach and to amend the grant of that tax allotment accordingly in the Land Register.

Once that has been done, I order that within a further 3 months (c) the Plaintiffs are to remove, under the guidance of the Defendants, all the sand, soil, stones, bricks and rubble deposited by them on what is now the part of the foreshore occupied by the 1st and 3rd Defendants; and (d) the 1st and 3rd Defendants are to remove any buildings or structures remaining on the newly re-surveyed area of the 1st Plaintiff's tax allotment.

I cannot at this stage tell where the re-defined southern boundary will lie in relation to the road or track which is the boundary that both sides agreed to observe when I varied the injunction on 23 December 2005, but if problems arise they can be raised with the Court as follows:

If any difficulties occur during those processes, any of the parties are free to return to the Court for further orders.

To avoid any further problems between the parties, the terms of the injunction of 25 November 2005, as varied on 23 December 2005, will remain in force until all those processes are complete and ultimately may only be lifted by this Court, but may be modified on the application of any party, in particular if appropriate following the re-survey I have ordered above.

Costs

There is no reason why costs should not follow the event and I award the costs of this hearing as agreed or taxed to the 1st and 3rd Defendants against the 1st Plaintiff.

Appendix: Re-survey plan of 1st Plaintiff's tax allotment from 1950s.