Skeen v Sovaleni [2005] TOSC 18; LA 016 2004 (10 June 2005)

IN THE LAND COURT OF TONGA
NUKU’ALOFA REGISTRY

LA 16/04

BETWEEN:

NORMAN ARTHUR SKEEN
Plaintiff

AND:

1. SIAOSI ‘OFA KI VAHANOA SOVALENI
2. MINISTER OF LANDS
Defendants

BEFORE THE HON MR JUSTICE FORD

Counsel: Mr Fakahua for the plaintiff, Mr Niu for the first defendant and Ms Raasch for the second defendant

Dates of written submissions: 3 and 6 June 2005

Date of Ruling: 10 June 2005

RULING

The plaintiff's claim is fraught with difficulties and, not surprisingly, the first defendant has applied to strike it out. The Minister of Lands, as second defendant, has undertaken to abide the decision of the Court.

The plaintiff pleads that he is a Tongan subject presently residing in Point Chevalier, Auckland, New Zealand. The action relates to a block of land at Fasi, Kolofo'ou, comprising 1 rood 29.7 perches. It is pleaded that between 1934 and 1995 the land was leased by the Crown to various lessees. The last lease, lease No. 3172, was to a Mrs Sela Skeen for a term of 20 years from 19 July 1975 until 18 July 1995 at a rental of $200 per anum.

It is further pleaded that, sometime after the expiration of lease No. 3172, half of the land (35 perches) was leased to the plaintiff and the other half was granted under deed of grant by the Minister of Lands (the second defendant) to the first defendant. In this proceeding, the plaintiff seeks to have registration of the deed of grant cancelled and the first defendant and his family evicted from the property. He also seeks an order that the whole of the 1 rood 29.7 perches be either leased or granted to himself.

The grounds upon which the plaintiff seeks to have registration of the first defendant's deed of grant set aside are said to be:

"(a) it was upon fraud or misrepresentation of the first and second defendants

(b) it was of a mistake or misunderstanding of the second defendant

(c) it is inequitable to allow it to stand

(d) the land was not available for grant as there was a dwelling house of the plaintiff and his family on the land."

The application to strike out the proceeding is made pursuant to Order 8 Rule 6 (1) (I) of the Supreme Court Rules 1991 based on the ground that the statement of claim discloses no reasonable cause of action. The principles relating to strike out applications are well established. No evidence is admissible on such an application and the Court is required to assume that the facts pleaded are true and undisputed. The discretion to strike out should only be exercised if the case as pleaded is so untenable that it cannot possibly succeed. If the defects in the pleadings are capable of being cured by amendment then it is appropriate for the Court to allow the plaintiff the opportunity to amend.

The principles applicable to setting aside registration of a deed of grant are also well established. Until it is established to the contrary, the Court will presume that the register is correct. Registration is final unless it has come about as a result of an error of law (i.e. 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.

It is axiomatic, however, that before a plaintiff can challenge the registration of any deed of grant he must have locus standi. The Land Court was not established as a forum for just any busybody.

In his strikeout application, Mr Niu correctly pointed out that the statement of claim fails to disclose any legal basis to support the plaintiff's alleged entitlement to the land held by the first defendant. The earlier lease over the whole block of land to Sela Skeen had expired. There is no specific pleading clarifying the relationship of the plaintiff to Sela Skeen although there is an implication in the final paragraph of the statement of claim that she was the plaintiff's mother but, even so, there is absolutely nothing pleaded which would suggest that the Minister of Lands was obligated in any way to lease or grant the whole of the land either to the plaintiff or his mother after the expiration of the lease. As Mr Niu expressed it: "The plaintiff has not pleaded in his statement of claim his legal right to claim any right as lessee or successor to the lessee of the expired lease of Sela Skeen."

Mr Fakahua submitted that the plaintiff had locus standi by virtue of section 7 of the Land Act (Cap 132). Section 7 is not pleaded but, in any event, that provision simply gives a person falling within its ambit an entitlement to apply for and be granted a tax or a town allotment. It does not give the plaintiff an entitlement to any specific allotment as his counsel appears to be contending in the present case.

The plaintiff's submissions in opposition to the strikeout application are commendably brief but no reference is made to any legal authorities. All counsel effectively does is to repeat the grounds set out in the statement of claim for challenging the validity of the deed of grant and then states that those grounds will be proved in evidence at the hearing.

Such an assertion is not good enough. Before any challenge can be made to registration of a deed of grant, a plaintiff must be able to establish proper standing before the Court. Where, as in the present case, a plaintiff claims entitlement to the land in question then the basis for his alleged entitlement must be apparent from the pleadings. Once that threshold is established then and only then do the pleaded grounds for setting aside the deed of grant become a relevant consideration.

On the pleadings as they stand, I accept Mr Niu's submission that the plaintiff has failed to establish a sound locus standi.

Turning next to the pleaded grounds for having registration of the deed of grant cancelled, it is clear from Mr Fakahua's written submissions that the principal ground the plaintiff relies upon is fraud and, as noted above, fraud is a recognised ground for setting registration aside. No particulars of any fraud, however, have been pleaded. Instead, Mr Fakahua submitted that fraud will be established through the evidence when the case eventually comes to a hearing. Counsel also indicated that the principal act of "fraud" to be relied upon will be "favouritism" by the second defendant in that, "the first defendant is the son of a former deputy prime minister."

The meaning of "fraud" was considered by this Court in Tukuafu v Tupoumalohi (unreported) No. L 5/01, judgment dated 12 September 2002. The concept involves dishonesty or moral turpitude. Whatever meaning the plaintiff attributes to the word "favouritism", it is not something that falls within the recognised definition of fraud. Moreover, it is not good enough for plaintiff's counsel simply to submit that fraud will be established and proven at the trial. Fraud is a serious allegation and it is not sufficient for the plaintiff merely to plead the facts from which it may be inferred. The acts alleged to be fraudulent must be stated fully and precisely with full particulars -- see Halsbury vol 36, para 36.

Although I suspect that the task will be beyond him, because some nexus has been established, I am prepared to allow plaintiff's counsel a final opportunity to try and remedy the defects by way of amendment. An amended statement of claim is to be filed and served within 28 days of the issuance of this Ruling. If, at that stage, it is still apparent that no reasonable cause of action has been established then the pleadings will be struck out.

In the meantime, costs are reserved.

NUKU'ALOFA: 10 JUNE 2005

JUDGE