Motuliki v Pohahau [1999] TOSC 64; L 0670 1997 (12 May 1999)

IN THE SUPREME COURT OF TONGA
LAND JURISDICTION
NUKU'ALOFA REGISTRY

L.670/97
BETWEEN:

SIONE POILANGI MOTULIKI

Plaintiff
AND

SITALEKI F. POHAHAU

Defendant

BEFORE HON JUSTICE FINNIGAN
AND ASSESSOR MR TEVITA LUPEITU'U

Counsel Appearing:
Mr Tu'utafaiva for plaintiff,
Mr 'Etika for first defendant,
Mr Malolo for second defendant

Dates of Hearing: 17, 18 March 1999
Date of Judgment: 12 May 1999

JUDGMENT OF FINNIGAN, J

The plaintiff seeks orders from the Court to cancel the registration of the first defendant as holder of an allotment and to declare himself as the person lawfully entitled to registration. Both defendants dispute his claim. The second defendant, the Minister of Lands, pleads as well in the alternative that the matter may be referred back to him for action with appropriate directions from the Court.

THE FACTS

The evidence of the facts was given by the plaintiff and the Registrar of Lands. The following account of what occurred is largely unchallenged evidence. It was suggested by Mr Malolo in final submissions that some of the oral evidence should be disregarded as hearsay. A great deal of the evidence at this hearing was hearsay, including some documents, and no objection was taken to it during the hearing so that any perceived defects might be remedied during the hearing. Those parts that are hearsay are about written and spoken words of the former Minister of Lands, now deceased, and of his successor. Any challenges made in cross-examination did not go to accuracy, and no evidence was called to discredit.

The land in dispute is a town allotment in Houmakelikao, Ma'ufanga, in the estates of Hon Fakafanua. The plaintiff, now aged 82, came to live on it in about 1980 and lives on it still.

The circumstances of his doing so commenced in about 1952 when one Malakai Pohahau came to live with him and his wife. Malakai was not a blood relative. He suffered from a disease and the plaintiff cared for him as a traditional healer. They lived together for most of the next 26 years, after which Malakai went to America. The plaintiff went with his family to Vava'u. After a time Malakai wrote from America and asked him to come back to Tongatapu. He told the Court that he had no land in Tongatapu, and that Malakai knew that. Malakai asked him to return, and said he would look for an allotment for them to live on.

Malakai came back from America and asked the plaintiff to describe the place where he would like to live. Malakai found such a place, which was the land now in dispute. Malakai approached Hon Fakafanua and obtained approval to occupy the land, and they moved on to it, the plaintiff bringing his family. Malakai built a house and the plaintiff planted and cultivated trees for fruit and for traditional fragrance. From November 1980 until the present day the plaintiff attended to all the landholder's responsibilities toward tile village, the church and the government. Malakai lived there with the plaintiff and his family until he died. During that time the plaintiff took care of him.

Malakai died on 19 June 1992. Shortly after he died his brother, the first defendant came on to the land and told the plaintiff to leave. He came several times. He told the plaintiff that he would build a house there for rent, and that he had registered himself as the landholder. The plaintiff thought that Malakai's family did not appreciate the care had given Malakai and decided he should apply for the allotment. He went to see the Minister of Lands, Hon Ma'afu Tupou, on 9 November 1992.

Unknown to him, the first defendant had applied for registration on 2 July 1992. The first defendant stated in his application that Malakai had been the previous registered holder. His application had been endorsed by the estate-holder, Hon Fakafanua, on 9 September 1992. On 14 September the first defendant had paid the survey fee. The Registrar of Lands told the Court that no survey was done, because this application was for an allotment, Lot 2, on a scheme plan. The registrar also said that when the Minister directs the payment of the survey fee it means he has approved the application. The plan of the allotment for the Deed of Grant was drawn on 23 August 1994 and was checked on 6 September 1994. The Deed of Grant, Vol 343 Folio 11, was issued on 8 May 1996 and the registration fee was paid that day.

When the plaintiff saw the Minister on 9 November 1992, he asked the Minister whether anybody had applied for this allotment, and the Minister said no. The Minister told him to obtain and lodge an application form, and with the help of a lawyer he did so. He took it to the Minister, who told him to take it to Hon Fakafanua for endorsement. He went more than once to find Hon Fakafanua without success. Eventually the Minister told him to leave the application with him, and he would give it to Hon Fakafanua for his signature.

He then visited the Minister regularly to see if Hon Fakafanua had signed, and there came a day when the Minister looked for the application on his table and it could not be found. This was some time in 1993. The Minister then told the plaintiff to get another form. He did so, he believed in 1994. This was filled in by the Minister, who dated it 10 August 1994. He then told the plaintiff to take it to the Town Officer for his signature. This he did. He returned the form to the Minister so the Minister's messenger could take it to Hon Fakafanua.

Then later in 1994 the plaintiff went to see the Minister. The Minister was ill but he visited him at his home. The Minister told him his allotment had been registered, and that the only thing left to do was to pay the survey fee, which the Minister said was the plaintiff's responsibility. He asked the amount, and the Minister told him the fee was T$40.00. On 23 January 1995 he paid the survey fee. After that the surveyors came and he saw them survey the allotment.

He told the Court that he understood that once he had paid the survey fee there were only formalities and that the property would be registered as his. He said the clerk told him to wait 2 weeks before coming to collect his deed of grant. After several weeks the deed was not ready, and eventually the clerk told him to go and see Hon Fakafanua, who he said had by this time become Minister of Lands himself. The Tonga Government Gazette Extra ordinary No.3/1995, 21 February 1995, shows that Hon. Fakafanua was appointed Acting Minister of Lands on 31 January 1995. He explained to the new Minister his need for a deed of grant, and the Minister replied that the allotment would pass by way of family descent. He said he told the Minister that it was not a family allotment and that it was not previously a registered allotment, adding that he had occupied it for over 10 years and had grown on it fruit trees and trees of traditional fragrance. As well, he told the Minister, he had carried out all the responsibilities in respect of the allotment to the village, the church and the government. He knew that, had it been a family allotment, the person to succeed to the allotment in a family succession would have been the first defendant, and he told the Minister that he should look for another allotment for the first defendant. He told the Court that he did not know at this time that the first defendant had applied to be registered holder.

His application form that had been completed in 1994 by the previous Minister was dated by him, 10 August 1994. It does not claim, as had the first defendant's, that there had been a previous registered holder. Samisoni Pone the Registrar of Lands gave detailed evidence about what was written on this form. It bears the signatures of the Town Officer and Hon Fakafanua as estate-holder. Those signatures are not dated, but they confirm the plaintiff's account about these signatures. There is a note, written by the Minister's clerk on 16 August 1994, informing the Minister that there was already an application for the allotment by the first defendant. There is yet another note by the Minister's clerk, dated 13 January 1995, informing the Minister again that there was already an application by the first defendant, which had been approved by the estate-holder on 9 September 1992. There is an undated note, written apparently by the Minister, that the land had been occupied by the applicant for 16 years, with 4 numbered items: i) pay survey fee, ii) house been built etc, iii) draw plan, and iv) to be registered. There is another note that the survey fee was paid on 23 January 1995.

The plaintiff told the Court that in his 1995 meeting with Hon Fakafanua, after he had told the new Minister about his long occupation and about the building and the trees on the allotment, the Minister had sent him away with the words "go and stay at your allotment." He still received no letter saying that the allotment was his, but he did receive a formal document, dated 22 November 1995, a Certificate of Land Apportionment in the Kingdom of Tonga. This document, signed by the Secretary for Lands and countersigned by the clerk to the Minister, certified that the plaintiff had been conditionally apportioned a plot of 30 perches at Ma'ufanga (the location and area of the plot in dispute). The certificate concludes with an explanatory note: "on condition that he fully developed/cultivated the land apportioned to him for a limited prescribed period of time". The Registrar of Lands was unable to cast light on the meaning of that explanatory note, or on the meaning of the word "conditionally" in the certificate. He did however state that the certificate was used to show that land had been allocated for registration, and that after the allocation had been approved the word "apportioned" was deleted and the word "registered" written there. The form does not appear to be one created by legislation. The Registrar said that it was used in applications to banks for loans and to foreign countries for visitors' visas.

The Registrar also said that the form is sometimes used when the Ministry holds an application that has been signed by the estate-holder. However, he said, the matter still must be checked, and in his opinion a careless mistake had been made in the case of this certificate.

The Registrar gave evidence that registration becomes complete upon the completion of details of the deed of grant in the register (Ss 120 of the Land Act Cap 132). He said also that normal practice for two competing applications was to let the Minister decide, and the procedure for decision varied with the individual Ministers.

There the plaintiff's application rested after the issue of the certificate on 25 November 1995. The deed of grant was issued on 8 May 1996, to the first defendant.

THE SUBMISSIONS

The case for the plaintiff, put briefly but clearly by Mr Tu'utafaiva in opening and in reply, has 3 grounds. What the plaintiff seeks is cancellation of the first defendant's registration, and registration in his name. First, he submits that the first defendant's application did not comply with Ss 7, 43(2), 82(e) and 122 of the Land Act (Cap 132), and the rule in s 50(a). It was thus, in his submission, invalid and unable to produce a valid registration. The plaintiff's application on the other hand he submits did comply with s 50(a). Second, he submits that the Minister acted under a mistake in accepting the first defendant as heir and successor of Malakai. This, he submits, was the only basis on which the first defendant could apply, and that basis did not exist. Third, he submits that the Minister was negligent in (a) losing the plaintiff's first application, (b) not having a survey done before registration of the first defendant and (c) not deciding between the known competing claims before registering the first defendant.

The first defendant's case is also concise. He did not give evidence. He relies on his registration. On his behalf, Mr 'Etika submits that the plaintiff has not established a case for disturbing what is on its face good title to the land. He submits that during Malakai's lifetime the plaintiff and Malakai were no more than licensees, and that after the death of Malakai the plaintiff had no rights at all, being only a squatter. In his submission, the plaintiff was a stranger, with no better claim to registration than any other person such as the first defendant. The first defendant in his submission acquired good title when he made application for it and was granted it. The date of that title was fixed, he submitted, by s 43 of the Land Act as the date of registration, 8 May 1996. However the actual or constructive date was in his submission the date on which the estate-holder gave his approval, i.e. granted the allotment to the first defendant, 9 September 1992. He submits that the plaintiff's application had no legal effect, being too late. The plaintiff in his submission not only commenced his application after 9 September 1992 but also had no approval from the estate-holder until much later on an unknown date. He thus submits that no case can be made out for mistake or negligence, and that there is no case for cancellation of the first defendant's registration.

In the alternative, Mr 'Etika submits that long occupation by itself gives no right in equity, i.e. there is no doctrine of adverse possession under the Land Act, and that statutory procedures must be followed. For this submission he relied upon a decision of the Privy Council, O.G. Sanft & Sons v Tonga Tourist Development Co Ltd & Ors, Appeal No 2/1981. He supplied his copy of the decision. This decision is reported at [1981-1988] TLR 26. At pp 11 and 12 of the unreported decision, the Privy Council held that the Land Act is a complete and rigid code for all titles and claims to any interest in Tongan land except in respect of leasehold interests once validly created under the Act. The Privy Council stated that while there is room in the land law of Tonga for application of equitable principles, "[they] can apply only to leasehold interests after they have been validly granted".

On behalf of the second defendant, Mr Malolo raised first certain objections to the plaintiff's case as outlined in opening by Mr Tu'utafaiva. He supplied copies of the authorities he cited. Apart from an objection to the incorrect description of the second defendant as first defendant in the first prayer of the claim, these objections amount to a claim that the plaintiff's claims of mistake and/or negligence, as now expressed, were insufficiently pleaded, and that the plaintiff should have sought leave to amend his pleadings to include the particulars that were revealed in opening. Mr Malolo submits that the case as presently pleaded make the second defendant's task in defending very difficult. He submits that the case against the second defendant, or alternatively so much of the case as is based on the particulars revealed in opening, should be struck out.

I uphold Mr Tu'utafaiva's submissions in reply, and I decline this application. The plaintiff's duty to the Court and to the other parties is to plead a case that is sufficiently clear and detailed as to inform the court and the other parties fully and fairly of the issues raised for determination, without pleading matters of evidence. The remedy for a failure in that duty is an application for further and better particulars, to which may be added an application for costs. That remedy was in the hands of the second defendant until he indicated he was ready for trial. In his pleadings however, the second defendant chose merely to deny practically all of the plaintiff's claims and put him to the proof. I find in any event that the plaintiff's case is sufficiently clearly pleaded as to give adequate notice of the issues, and that no new issues have been added during the trial. I allow Mr Tu'utafaiva's consequential claim to correct the first prayer.

Mr Malolo has made significant submissions about the evidence, which I have taken into account, and about the law. He refers me to four other decisions of the Privy Council, Afu v Falakiko Lebas II [1923-1962] TLR 167, Hausia v Vaka'uta & Minister of Lands [1974-1980] TLR 58, Vaea v Minister of Lands & Fetu'ufuka [1974-1980] TLR 13 and Ongosia v Tu'inukuafe & Minister of Lands [1981-1988] 113. These decisions are important contributions to the law governing this case. I am indebted to Mr Malolo, and to Mr 'Etika, for their submissions on the case law.

THE PRINCIPLES

Turning first to the provisions of the Act that have been cited, I note that in general Mr Tu'utafaiva emphasised in the sections he cited the words "subject to the provisions of this Act". I accept that the various provisions he cites are so subject, and that what the second defendant did in the present case is subject to the Act. Beyond that it is not necessary to refer to Ss 7, 43, 82(e) and 122. They are of general application only. S 7 is the general entitlement to a grant, and s 43 prescribes three rules, with which both competing applicants complied. There can be no question of succession in the family line under Division VIA of Part IV of the Act, so Ss 82 and 122 cannot apply. For statutory principle, one is left then with the rule in s 50(a). That rule is as follows:

(a) an applicant for an allotment lawfully resident in an hereditary estate shall have his allotments out of land available for allotment in that estate...

Apart from that, the plaintiff must rely upon case law principles.

The principles that I extract from the cases are the following. Where I cite a case, it may not be the only authority for the proposition:

(i) where claim is made to an allotment each case must be decided on its own facts - Ongosia (above);

(ii) good title is shown not by one fact alone, even by registration alone, and, to the contrary, it is not necessary to prove registration - Fifita Manakotau v Vaha'i (Noble) (1959) 2 TLR 121;

(iii) the priority of applications is no more than a factor to be taken into account in deciding between competing claims, and weighed with all the other relevant factors - Vaea (above);

(iv) the fact that an estate-holder has unfairly approved two applications for the same allotment is not sufficient to upset the completed registration of one of them - Afu (above);

(v) to upset a registration a plaintiff must show that in making the grant the Minister acted on wrong principles - Afu (above);

(vi) more particularly, the Court will upset a grant only if the person challenging its validity establishes that the Minister has acted contrary to statute, or in breach of the rules of natural justice, or in breach of a clear promise by the Minister and the estate-holder - Havea v Tu'i'afitu & Ors. [1974-1980] 1 TLR 55.

From the principles stated another emerges, though it is not necessary for decision of the present case:

(vii) a failure by the Minister to perform any statutory duty under the Act (such as a failure to deliver a deed of grant under s 121) is an act contrary to the statute and may be contrary to natural justice. Such a failure may therefore be sufficient to upset a registered grant. The decision of this Court in Folo Tokotaha v Minister of Lands & S. Vea (1956) 2 TLR 99 cited on another point by the Privy council in Ongosia (above) would not in my opinion stand against this proposition.

In cases where a claimant claims that the Minister acted in breach of natural justice, the application may best be brought by way of application for judicial review, rather than by writ of summons.

DECISION

I shall first dispose of the claims in negligence. The plaintiff here relies on the law of tort. In my opinion, there is little, if any, place for the law of tort in Tongan land law. The decision of the Privy Council in O.G. Sanft & Sons Ltd (above) make it plain that the Land Act is a complete code which rigidly controls what may be done in cases like the present. The prescribed procedures and rules are followed or they are not. My view for what it is worth without argument is this. There may be claims in tort for damages arising out of alleged negligence on the conduct of functions under the Land Act, but these cannot be claims in land law. The only possible entry point for tort into Tongan land law is in the area of leasehold interests that have been validly granted, in which the Privy Council held the Act departs from its strict control of titles to land and permits the application of equitable principles. It may be that some claim in tort might arise in this area, but I have not been required to consider that point and I make only that comment. The plaintiff in this case is not seeking damages, (nor could he), and in my view the claim of negligence cannot succeed.

As for mistake, this ground was not subject to argument either. My view is this. There is room in the present case for allegations of mistake, but not as a discrete cause of action. In general, a claimed mistake can ground an action under the Land Act only if any proven mistake amounts to a breach of the principles of the Act, or a breach of natural justice, or a breach of a promise. However, apart from that, it seems to me that mistake may arise as a cause of action in a case about a leasehold interest that has been validly created, because mistake as a ground for relief may arise as an issue in contract or equity. There is otherwise no place in the land law of Tonga for principles that apply to mistake.

The only question that can arise for decision in the present claim is whether the Minister in registering the first defendant failed in any statutory duty, and/or breached the rules of natural justice and/or broke a clear promise made to the plaintiff by himself or by the estate-holder. For this proposition I rely upon the provisions of the Act itself, as reinforced by the decision in O.G. Sanft & Co Ltd (above), and the other decisions of the Privy Council to which Mr Malolo referred me, and which in closing Mr Tu'utafaiva adopted.

The answer to that question is to be found in the facts. I turn first to the first defendant's application. This proceeded from approval by the estate-holder through to registration, and is unremarkable except for two things. The first is that he applied as heir of his brother as a registered holder of the allotment, when that was not the case. However, the application form (Exh D2) shows that this error was noted by the clerk on the form on 10 September 1992, the day after the estate-holder's approval was given. He wrote that he submitted the application to the Minister (Hon Ma'afu Tupou) for decision whether the work should proceed. He noted that S Pone (the Registrar of Lands) had said there was no name registered, and the land was vacant. The survey fee was paid on 14 September 1992. A note on 22 September 1992 says the instruction was given to proceed to registration. There is nothing in any of this that helps the plaintiff. The second feature is however significant for the plaintiff. The Minister did not proceed to registration for another three and a half years, until 8 May 1996.

In that time, the plaintiff had applied, and his application had been made direct to the Minister, who encouraged and helped him. The Minister even filled out the second application form (Exh D3) and took it to the estate-holder for his approval and obtained his signature. That application form (the second one) was dated 10 August 1994, but the approval is undated. The clerk made a note on the form on 16 August 1994 that the first defendant had applied for the same allotment, and later added another dated 13 January 1995, that the first defendant had already applied, with the approval of the estate-holder. It seems that the Minister wrote his own note on the form when he filled out the form in 1994. His note was that the plaintiff had lived on the allotment for 16 years, that a house etc had been built on it, that the plaintiff was to pay the survey fee, that the plan was to be drawn and that the applicant, the plaintiff, was to be registered. This note must have been written before 23 January 1995, because the survey fee was paid on that day.

The note is a record of a direction by the Minister to the plaintiff to pay the survey fee, which the Registrar of Lands said in evidence shows that the Minister has approved an application. It shows an intention by the Minister to grant registration to the plaintiff, and the note was written after the first defendant had applied and paid a survey fee.

No claim can arise from the fact whether an application was made first, nor from the fact of consent by the estate-holder. The decision is ultimately that of the Minister, and he was free to choose which application to register, subject to the principles I have noted above.

The progress of the plaintiff's application did not end there. The clerk had first sought a decision from the Minister about which application should be granted in his note of 16 August 1994. This despite the fact that the clerk had noted the first defendant's application on 22 September 1992 that it was to proceed. It did not proceed. Then, although the plan was drawn on 23 August 1994 and checked on 6 September 1994, still no deed of grant issued. It is clear from the note by the clerk dated 13 January 1995 that the clerk was at that date still waiting for the decision from the Minister, first sought on 16 August 1994, about which applicant would receive the deed of grant. Then, for no reason that is shown in the evidence, a formal certificate was issued to the plaintiff by the Ministry of Lands, Survey and Natural Resources, signed by the Secretary for Lands, Survey and Natural Resources, and countersigned by the Minister's clerk. I was told the form has no statutory basis, but it is a printed document carrying the seal of the Kingdom and the title of the Ministry. It says on its face that it is a "Certificate of Land Apportionment in the Kingdom of Tonga". The Registrar for Lands said in evidence that he did not know the reason but he believed that the issue of this certificate to the plaintiff was a careless mistake. His experience in such matters is a powerful guide to the Court, but on the evidence presented to me, the issue of this certificate seems a natural development in the course of events, and follows on naturally from what is shown by the notes on the plaintiff's application.

The first defendant's application had apparently been cleared in September 1992 for registration but after the plaintiff's application the clerk held it, awaiting a further decision. The new Minister was aware of the plaintiff's application, and he had told the plaintiff in January 1995 to "go and stay at your allotment". The certificate issued to the plaintiff in November 1995 clearly on its face is a document issued by the Ministry and, with the signatures that it contains, must surely be presumed to have had the express authority of the new Minister. It seems to me that if a mistake was made, it was the unexplained issue of the deed of grant to the first defendant after all that had been written in the plaintiff's favour.

There are no minutes of a Minister's decision in these matters. The evidence of what he decides is the completion of the deed of grant, a printed form pursuant to s 120 and Schedule v of the Act. From what had gone ahead, it is logical to expect that the deed of grant would have been completed with the name of the plaintiff and then presented to the Minister for signature. Instead, it was presented to him with the name of the other applicant, the first defendant. Why this occurred is not explained by any witness from the Ministry, there is no evidence at all about the process that was followed. But the fact that it occurred is contrary to the expectation that the new Minister had given the plaintiff, both as estate-holder and as Minister, and contrary to the clear and specific statements of the previous Minister. When compared to the course of events, it was certainly a mistake. It may have been a mistake by the new Minister, or by the clerk who presented the deed of grant to him for signature, but I can conclude only that it was a mistake. If it had been done deliberately, and not as a mistake, I should be bound to hold that it was an act in breach of natural justice.

The evidence as it stands confirms this conclusion in another way. The grant to the plaintiff complies with the rule in s 50(a), (above), and there is no evidence whether a grant to the first defendant complied with that rule or not. It is reasonable to assume that the Minister weighed this factor. On the evidence I have, he was bound to grant the allotment to the plaintiff.

The question now is, what should be done? The plaintiff seeks a direction from the Court to change the registration. There is now another Minister. Mr Malolo on behalf of the Minister submits that the case should be remitted to the Ministry of Lands "for the proper handling of this matter". Mr Tu'utafaiva asks the Court to settle the matter. Is it in accord with natural justice to proceed without hearing from the first defendant? He chose to give no evidence to the Court. There is nothing to say whether he previously was heard or not by the Minister. The deciding factor is that he chose to remain silent in these proceedings and I must proceed on the evidence that I have. It seems to me that the indications are against remission back to the current Minister for a limited exercise of his discretion in accordance with this judgment. The evidence of the former Ministers' intentions is clear, these should be given effect with minimum further delay, and the Court should take the responsibility for it.

I direct that the registration of the first defendant as holder of the allotment in question in this case be cancelled, and that all proper steps in that regard be taken. I direct that the plaintiff be issued with a deed of grant of that allotment, pursuant to Ss 120 and 121 of the Land Act cap 132.

COSTS

Costs in the cause are awarded to the plaintiff, to be agreed or taxed. Pursuant to s 152 of the Act, this order cannot have force against the second defendant, baut it is to be hoped that the second defendant will pay or contribute.

NUKU'ALOFA: 12 May 1999

JUDGE