Tukuafu v Latu [2005] TOSC 6; L 0005 2002 (31 January 2005)

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

NO L 5/2002

BETWEEN:

TEVITA TUNUFA’I TUKUAFU
Plaintiff

AND:

1. SIONE TU’ALAU LATU
2. MINISTER OF LANDS
3. KING TAUFA’AHAU TUPOU IV
Defendants

BEFORE THE HON JUSTICE FORD and ASSESSOR MR GEORGE BLAKE

Counsel: Mr Niu for the plaintiff;
Mr Tu'utafaiva and Ms Mangisi for the first defendant and;
Miss Simiki for the second and third defendants.

Dates of hearing: 1, 2, 3 and 5 November 2004

Dates of written submissions: 22 November and 1 and
10 December 2004

Date of Judgment: 31 January 2005

JUDGMENT

On the "western side" of Tongatapu, as the area is referred to locally, there are a number of popular sandy beaches. During the first half of the year 2000, the first defendant built a special-purpose resort on land at Kanokupolu which fronts onto one such beach. In this proceeding, the plaintiff claims that the resort was built on part of his tax allotment without his consent and he seeks an order for the building's removal.

For his part, the first defendant disputes that the allotment belongs to the plaintiff. He contends that the land in question is part of the Kanokupolu Royal Estate and that His Majesty, who is named as third defendant in the proceeding, personally directed him to build the resort in question. The case raises a number of significant and rather unusual issues.

Probably the starting point for any consideration of those issues is section 3 of the Land Act (CAP. 132) which declares all the land in the Kingdom to be the property of the Crown. Section 7 sets out the entitlement of male Tongans to grants of allotments and section 8 provides that grants of allotments are to be made from lands in hereditary estates or Crown Land. Section 9 of the Act then defines hereditary estates. They are said to be the lands listed in the First Schedule to the Act as hereditary estates held by the respective Nobles and Matapules whose names appear in the Schedule.

Section 10 of the Act is important in the context of the present case. It declares that all other lands, apart from the hereditary estates, are Crown lands and it goes on to provide that there shall be set aside from that Crown land the lands described in Schedule II of the Act as Royal Estates and the land described in Schedule III as Royal Family Estate. I set out section 10 in full:

"10. (1) All lands other than those described in Schedule 1 (the hereditary estates) are Crown lands and there shall be set aside therefrom the lands specifically described in Schedule II as the Royal Estates for the use of the Sovereign for the time being and there shall also be set aside therefrom the lands described in Schedule III as the Royal Family Estate. A life interest in any of the lands described in Schedule III or any portion thereof may be granted to such person as the Sovereign for the time being may appoint.

(2) Notwithstanding subsection (1), His Majesty may lease for projects of general public interest and benefit any of the lands or part thereof described in Schedule II and Schedule III."

There is no dispute that the land in question is part of the Kanokupolu Royal Estate. Kanokupolu is one of the Royal Estates listed in Schedule II of the 1927 Land Act. It is necessary now to see how it comes about that the plaintiff is able to claim, as he does, that he became the duly registered holder of an allotment on Royal Estate land. His claim has its origins back at the end of the 19th century when the 1875 Constitution of Tonga was still in its infancy.

In his statement of claim the plaintiff pleads that he is a great-grandson of one, Viliami Lomu. His pleading continues:

"2. Viliami Lomu was a substantial resident of Kanokupolu and like the people of Kanokupolu, was a loyal and faithful follower and supporter of King George Tupou I. The men of Kanokupolu were granted hereditary tax allotments by the King out of his land of Kanokupolu, the sizes of which varied according to (the) wishes of those men. Viliami Lomu was accordingly granted an hereditary tax allotment of 10 acres 3 roods 1.5 perches.

3. Upon Viliami Lomu's death, his widow Fie'alu Lomu, posthumously registered the allotment in her name on 7/ 8/1917.

4. Upon her death, the allotment was transferred and registered in Viliami Lomu's son and heir, Taniela Ngahe, on 30/4/1924. He died on 25/5/1974 and his widow Pauline Ngahe died on 16/6/1974. The allotment was accordingly registered in the widow's name and transferred and registered in Taniela Ngahe's son and heir, Aisea Tukuafu, on 12/4/1975. He died on 7/11/1985 and the allotment was registered in the name of his widow, Mele Mapa Tukuafu, on 30/10/1986. She died on 21/9/1995. Aisea Tukuafu's son and heir, Tevita Kaufono Tukuafu, claimed the allotment on 1/4/1996.

5. On the same date, 1/4/1996, Tevita Kaufono Tukuafu conveyed his election to the Minister of Lands at the time to retain his own tax allotment at Holonga and also the election of his next brother, the Plaintiff, to give up his own tax allotment at Holonga and succeed to the allotment (in question) instead. He, the Plaintiff, was duly registered as holder of the allotment on 8/8/1997."

The 58-year-old plaintiff, who I will refer to often simply as "Tevita" told the court that he is domiciled in Sydney, Australia. He retired early from his job as a security officer because of an eyesight problem. He first moved to Australia from Tonga in 1974 and he became a permanent resident of that country in 1976. He married his Tongan born wife in New Zealand in 1980 and they have four children. Tevita said in evidence that after he acquired the Kanokupolu allotment in 1997, following on from his older brother's surrender of the land, he left it for the use of his father's sister, Latu Makamoeafi, and her husband and family.

In late February or early March 1997 Tevita received a letter from the Palace Office inquiring about the land at Kanokupolu. The letter is written almost six months prior to when Tevita became the registered holder of the allotment in question but nothing appears to hinge on that point. Presumably, the Palace Secretary had made inquiries at the Land Office and found out that Tevita was in the process of becoming the registered holder of the allotment. The letter, as translated, reads:

"26 February 1997

Dear Sir,

Thank you for working from there. This letter may appear surprising but because it is to convey to you the desire of His Majesty. Survey was carried out at Kanokupolu in order to find a place that is beautiful and suitable for the establishment of the development construction of the King and he has desired that it is beautiful to put up in your tax allotment. Therefore this letter is made to you to convey to you that a 3 acre piece of land be please taken out from your tax allotment for the establishment of His Majesty's work.

It is possible to exchange this piece if you want. Would you please write to us a letter to state if you would agree to this communication in order for us to forward it right away to the Survey Department to proceed with their work on this position to enable this construction to start.

Hope that you understand this communication and we await your confirmation.

Yours faithfully

Edwin Mo'ungaloa

Acting Secretary for His Majesty."

Although the response was not produced, it appears that on 19 March 1997 Tevita replied to the Acting Secretary saying that he was sorry that he would not agree to the proposal.

On 14 April 1997 the Acting Secretary for His Majesty again wrote to Tevita. After acknowledging his response of 19 March 1997, the letter continued:

"It is clear to me the condition of your mind and you're willing to help the work (of His Majesty) that is about to carry out. It is only 3 poles that is required to be taken from your tax allotment of the beach because of development construction in preparation for the new millennium. I expect that you would help us as I believe that everything will be advantageous to you, as you would also help as such to the development of our country especially Kanokupolu. I hope that you will clarify to us at the first opportunity so that the work of the Ministry of Lands and Survey will proceed.

Hope that you understand this communication.

Yours etc."

On 16 April 1997 Tevita replied:

"Acting Secretary for His Majesty

Etueni Mo'ungaloa

Dear Sir,

Thankful to God for leading the way for us. I have received your letter (fax) on 14th of April 1997.

I apologise Sir and please bear the trouble, this letter may seem disrespectful but I do not agree to this request. I hope that you understand my commoner's heart, and hope that the Lord will partake in the visions and plans which you make.

Hope that you understand this letter.

Yours etc."

Tevita heard no more. The next development in the narrative was revealed in the evidence of Tevita's wife, Katinia. Katinia told the Court that around the time of His Majesty's birthday in July 2000 she heard over Radio Tonga in Sydney a broadcast about His Majesty opening a new resort building at Kanokupolu. She said that on the same day they received a telephone call from Tevita's sister asking if they knew about the resort that had been built on the land at Kanokupolu. They told the sister to check out the story. Katinia explained in evidence that Tevita was very upset over the news. She said that, although it did not mean a great deal to her, her husband loved the land at Kanokupolu and it was very important to him.

Katinia was asked why they did not do something about the situation immediately instead of then waiting until 6 August 2002 to issue the court proceedings. She explained quite graphically and convincingly how they simply did not have the money to travel back and forth or to instruct lawyers in the matter. She said that they were not well off. Her husband had had ongoing problems with his eyesight which in turn affected his work; they have a high interest mortgage on their house and they have paid for their children to attend a private Catholic school. Katinia said that it was a big effort financially for them to even be able to travel to Tonga for the trial so back in July 2000 when they suspected that they had a problem with the allotment at Kanokupolu, they ignored it and hoped that it would go away. It didn't.

On 6 September 2000, the Minister of Lands & Survey, Hon Tu'i'afitu wrote to Tevita. The letter has been translated as follows:

"Dear Sir,

Tax Allotment at Kanokupolu.

I respectfully relate to you in this letter some information relating to your tax allotment currently registered in you at Kanokupolu.

DETAILS OF THE ALLOTMENT

Name -- Vakaloa

Area -- 10a 3r 1.5p

Location -- Lot 6 Blk 83/85

Registration date -- 7/8/1917

I believe that it has been imparted to you with regards to the work and development construction of His Majesty on the part towards the sea of your Tax Allotment. And there has not been any land (or survey) work done to that part, but I ask and invite you to make representation to me in relation to this work.

There is a hope that it would be possible for you to be kind to give up the 2 acres on the side to the sea. However, I will leave you to be at liberty to give your arrangement to me in relation with the development construction which has been carried out.

I believe and expect that you would agree to reply to this letter. Yours etc."

Tevita immediately responded. The letter (undated) was composed by Tevita and his wife but typed in Tongan by their son. The translated version reads as follows:

"Dear Sir,

I respectfully write this letter in connection with the letter sent to me on the 6 September 2000 relating to my tax allotment at Kanokupolu. Sir, contact was made to me in 1997 from the Palace Office in connection with the request stated in your letter. I had made it clear to you that I do not agree but news was surprisingly sent to me that work had already been done on the allotment and the business of a man called Sione Tualau Latu is operated on it. And there is nothing missing from me, hence due to the unlawful action carried out on my allotment I am greatly aggrieved by it. Therefore, I will make it clear again to you that I do not consent to the establishment being made on my allotment and I want, upon receiving of this letter, to remove forthwith the work being carried out on my allotment as I will contact my legal representative to take best action on these misunderstandings which have happened.

My apology if this letter appears disrespectful but it is due to my great grievance in the unfounded communications already happened.

Yours etc."

Tevita said that on 7 November 2000 he wrote to the defendant asking him to vacate the allotment but the defendant told the court that he never received such a letter. I accept what the defendant says. The copy produced to the Court does not give any address for the defendant.

The final development occurred on 18 February 2002 when the present Minister of Lands, Fielakepa, wrote to Tevita. I will not set out the contents of that letter. After referring to some of the background matters, the Minister, wisely, suggested that Tevita might wish to take legal advice. Shortly after that, Tevita travelled to Tonga and sought advice from his present counsel, Mr Niu.

That, in essence, is the plaintiff's case. It was not really challenged by the defendants. Mr Niu also called evidence from Makakaufahi Mahekitonga, the Land Registration Officer with the Ministry of Lands, Survey & Natural Resources. He confirmed the various entries in the Register Book for the land in question going back to the first registration in the name of the widow Fie'alu Lomu on 7 August 1917.

Mr Mahekitonga told the court that, according to the Register Book, Tevita has been the registered holder of the allotment since the 8th of August 1997 but, for some reason which the witness was unable to adequately explain, neither Tevita nor any of his predecessors had ever been issued with a Deed of Grant to the land.

The first defendant, 66-year-old Sione Tu'alau Latu, told the Court that he has been a businessman all of his life running an assortment of businesses at different stages including importing and exporting, fast food, construction and even a mortuary business. He explained how one day in the second or third week of January 2000 he received a visit from Vilai Kupu of the Palace Office, who told him that the King wished to see him. Tu'alau said in evidence that he had met the King before but never in relation to business matters. On this occasion, however, His Majesty told Tu'alau that he wished him to set up a Hawaiian lu'au Centre (feasting place) on the land in question. It appears from the evidence, and I accept, that His Majesty saw the construction of the Hawaiian lu'au Centre as an appropriate public project for the new millennium and he wished to have it ready for opening on his birthday, viz, the 4th of July 2000.

The King explained to Tu'alau that he had some time previously asked a local Kanokupolu man, Manoa Fifita, to build the resort and Manoa was proposing to undertake the project with two colleagues but in the end the two other men returned to Hawaii and Manoa had to tell the King that he was unable to go ahead with the project. Manoa had, however, cleared the land in question and had fenced it off from the rest of the allotment.

Immediately after his meeting at the Royal Palace, Tu'alau was taken by Vilai Kupu to Kanokupolu to inspect the land. His Majesty had said to Tu'alau: "You go with that man and build on the spot that he shows you." Vilai duly showed Tu'alau the land in question at Kanokupolu and then Tu'alau had a meeting with Manoa Fifita who had been looking after the property. Manoa confirmed to Tu'alau that he had been intending to carry out the Hawaiian lu'au project for the King but his two partners had not been able to go ahead with it. He commented to Tu'alau, "it will be good if you can help the King."

Following his inspection of the site, Tu'alau set about working on the project with commendable speed. He told the court that he immediately began preparing drawings for the resort and a few days later he returned to the Palace and presented them to His Majesty for approval. He said that the King inspected them and then said: "Very good. Go and build."

Tu'alau said that at that stage nothing had been mentioned about finance for the project and so he asked Vilai Kupu whether funding had been arranged. Tu'alau told the Court it was at that point he realised that what was meant was for him to go and build the resort himself -- there would be no assistance with finance. For his part, he was happy to accept the challenge. He explained:

"I wanted to do the King a favour. He had asked someone else and they did not do it. I thought I would try to do a good deed for His Majesty. He is a good man. I was thinking it was his land."

Although the start date was not disclosed, it is apparent from the evidence that building work on the resort must have commenced almost immediately following His Majesty's approval of the plans. Tu'alau produced a Savingram which he said authorised him to develop and build on the beachfront site. The letter is dated 29 February 2000 and is addressed (for some reason which was not clearly explained) to the Minister of Labour, Commerce & Industries and Tourism. It reads:

"RE: Mr Sione Tu'alau Latu

I am commanded by His Majesty to inform that His Majesty has given permission for Mr Sione Tu'alau Latu to develop His Majesty's land at the beachfront at Kanokupolu.

'Eleni 'Aho

Private Secretary to His Majesty."

Tu'alau said in evidence that in April 2000 His Majesty inquired as to whether the building would be completed by July and he had responded that he would be rushing to have it finished by 4 July. He then told the Court about an incident that occurred during the second week in June when he received a site visit from the plaintiff's brother, Ngahe. Ngahe had asked Tu'alau whether he realised that the property he was building on belonged to his family. Tu'alau responded that he did not know anything about that but the King had sent him and if he (Ngahe) had a problem then he should go and see the King. There is no evidence that Ngahe ever did go to see His Majesty but Tu'alau visited the Palace again and explained to the King about Ngahe's visit. Tu'alau told the Court that His Majesty simply told him to go ahead with the work because he had not signed any papers and there had been a mistake by the Minister of Lands and a man in Australia. Tu'alau said he assumed that the King was talking about papers relating to the ownership or registration of the property. In any event, he said that he felt reassured by what His Majesty had told him.

In cross-examination, Tu'alau said that by the time of Ngahe's visit he had already expended about $300,000 on the resort and he estimated that, all up, the project had cost him approximately $500,000. He explained how he had used all his own funds on the project and had taken out a loan of $100,000 from the Tonga Development Bank. The bank had released $35,000 of the funds but when he subsequently asked the bank to release more of the loan money to pay an account from Tonga Timber & Hardware Ltd of approximately $40,000, the bank declined until such time as he had acquired a lease of the property.

Tu'alau told how, because of the present dispute before the Court, he has never been granted a lease of the property and the Tonga Timber & Hardware account is still outstanding. He said that they had always expected to obtain a lease of the land in question from His Majesty and the Palace Office had actually drawn up the lease papers but then everything had been put on hold because of the dispute before the Court.

Tu'alau was asked questions about his understanding of the land ownership position. He reaffirmed in cross-examination that all along he believed that he was building on land that belonged to the King and the King had reassured him to that effect when he had visited the Palace Office in June following Ngahe's visit. Tu'alau explained in evidence that the King had suggested the project; he was happy to build the resort for him and even today he still refers to it as the King's project. It was put to him that His Majesty had not contributed financially to the project. Tu'alau agreed but explained that he believed that the land the King was going to be leasing to him was His Majesty's contribution.

That, essentially, is a summary of the first defendant's evidence. Unfortunately, no witnesses were called from the Palace Office and much of the evidence was, therefore, hearsay but it was not objected to and there is a long standing practice in the Land Court, recognised by Ragner Hyne L.C.J. in Kalaniuvalu (Noble) v Minister of Lands (1937) Tonga LR 11, and Lewis C.J. in Na'ati v Motu'apuaka (unreported) No. L3/91 (judgment dated 2 March 1998), that hearsay evidence is admissible in land dispute cases.

The reason why I say it was "unfortunate" that no witness was called from the Palace Office is because, in reality, this is a dispute about title between the plaintiff and His Majesty -- not the first defendant. The first defendant does not claim to be the landholder of the allotment. His reason for carrying out the work and for being in occupation of the land is because of the directions he received from His Majesty.

It is clear from the first defendant's evidence, which I accept completely, that His Majesty strongly believed the Ministry of Lands or the Minister at the time had made a mistake in dealing with the man from Australia and that he (His Majesty) had not signed the papers that he obviously considered needed to be signed before the plaintiff could claim title. Evidence should have been called from someone at the Palace Office to enlighten the Court on these matters. The Court should not be left to speculate. As it was, no evidence was called on behalf of either the second or third defendants.

I say at once that I found the plaintiff and the first defendant completely truthful and credible witnesses. That cannot be said often about adversaries in a court case. They appeared to be genuine, honest men who have, rather tragically, become caught up as innocent parties in a web of legal entanglement which is quite beyond them both.

The case for the plaintiff, put most succinctly by Mr Niu, is that the whole of the 10 acre allotment at Kanokupolu was land that had been granted to the plaintiff's great-grandfather, Viliami Lomu, by King George Tupou 1 sometime between 1882 and 1893, as Viliami's hereditary tax allotment and, as such, no subsequent King or Queen could deal with the land unless it reverted to them lawfully.

In this regard, the plaintiff relies upon clause 52 (now clause 48) of the 1875 Constitution which provided:

"52. Inheritances of the King and the property of the King is his, to do with as he pleases. The Government shall not touch it, nor shall it be liable for any Government debt. But all houses built for him by the Government and any inheritance which may be given to him as King shall descend to his successors as the property and inheritance of the Royal line."

As Mr Niu pointed out, the words used in the Tongan version of clause 52 for "inheritances" is "ngaahi tofi'a" meaning estates. The word "lands" has replaced "inheritances" in the present version of the clause (now clause 48). Mr Niu also referred to section 6 of the first Land Act in 1882 which provided:

“All such tax lands shall be hereditary, and on the death of any man, his widow shall possess such tax land while she lives and does not marry again, but should she marry again or commit adultery, such tax land shall be forfeited and shall become the property of the next heir.

Counsel relies upon that section in support of his submission that the grant made by Tupou 1 to Viliami Lomu would have been an hereditary grant.”

Although the allotment at Kanokupolu was never registered in Viliami's name, Mr Niu points to section 566 of the Land Act 1903 which provided:

"566. Any person who shall at the passing of this Act already hold a tax allotment shall continue to hold such allotment and shall apply to the Minister of Lands or his Deputy for a deed which shall be forthwith registered."

Counsel submitted that section 566 confirmed the validity of grants already made prior to the 1903 Act and that the Minister of Lands must have been satisfied as to all aspects of the grant when he registered Viliami Lomu's widow, Fie'alu Lomu, as holder of the tax allotment on 7/8/1917.

It was recognised in Minister of Lands v Manase Kamoto (1923-1962) 11 Tonga LR 132, that under the 1903 Land Act tax allotments were registerable although the failure to register could not invalidate a title. The onus of registering an allotment was said to be placed on the Minister and not on the allotment holder.

The defendants submit that, whatever happened prior to the Land Act 1927, the position now under section 10 of the 1927 Act is that the allotment in question is part of the Royal Estate of Kanokupolu and, as such, it cannot be held by any individual as an hereditary allotment. Both defence counsel referred to the Privy Council decision in Vaea v Minister of Lands and Fetu'ufuka [1974-80] Tongan LR 13, which they submitted held that an allotment cannot be granted from land which is part of a Royal Estate.

Mr Niu takes issue with that submission and challenges the accuracy of the head note to the report from which the statement is derived. I agree with Mr Niu. The head note is inaccurate and the case is not authority on the point defence counsel seek to rely upon. Moreover, it appears to me to be doubtful whether the tax allotment in question in that case was situated on Royal Estate land as the appellant had argued. The land was said to have been at Kolomotu'a but the only Royal Estate land in Kolomotu'a, according to Schedule II of the Land Act is "Loto'a, Sia ko Veiongo" which is specifically defined and refers to the Palace Land and the block of land across the road from the Royal Palace dominated by the British High Commission complex extending South to Wellington Rd. and West to Sipu Rd.

Be that as it may, I do find Miss Simiki's other submissions relating to the general status of Royal Estate land to be compelling. As I indicated at the outset of this judgment, the scheme of the Land Act is that grants can be made only from hereditary estates and Crown land. Although the Royal Estates and Royal Family Estates come within the definition of Crown land, they have been specifically set aside under section 10 of the Land Act for the Royal purposes described and, as such, there is no statutory authority authorising the granting of hereditary estates from such lands.

Mr Niu's response to the proposition just stated is that section 10 of the Land Act must be read subject to clause 48 of the Constitution which allows the King to dispose of his land as he pleases and as Tupou 1 had disposed of the allotment in question to Viliami Lomu that is really the end of the matter. The present Monarch, Mr Niu submits, is unable to deal with the land in any way unless it reverts to him by law.

Mr Niu referred to what he described as an apparent inconsistency between clause 48 of the Constitution and section 10 (1) of the Land Act. He submitted that whereas clause 48 allows the King to dispose of the land of the King as he pleases, section 10 (1) of the Land Act provides that, except as provided for in subsection (2), Royal Estates are for the use of the "Sovereign for the time being." Mr Niu submits that if the effect of section 10 (1) of the Land Act 1927 was to restrict the ability of the King Tupou 1 to do as he pleased with his lands then section 10 (1) was ultra vires clause 48 (formerly 52) of the Constitution.

I am afraid that I cannot accept that synopsis of the position. Clause 48 of the Constitution does not speak about the Ruling Monarch being able to "dispose" of his land and property as he pleases. It certainly allows him to use his land as he pleases but the wording of the final part of the clause makes it clear that all Royal property is to descend to the King's successor and I find that constitutional provision quite inconsistent with Mr Niu's basic submission that King Tupou 1 was free to dispose of the land in question in such a way that it could no longer descend to his successors. To take Mr Niu's submission to its logical conclusion, it would mean that at any given point in time the Ruling Monarch could dispose of all the recognised Royal Estates and there would then be no such land left to descend to his successor. That scenario, in my view, is clearly not the intendment of clause 48 of the Constitution.

Contrary to plaintiff counsel's submission, I find the provisions of section 10 of the 1927 Land Act consistent with the provisions of clause 48 of the Constitution. As I see it, section 10 simply gives effect to and restates in a more focused manner the more general provisions of clause 48 of the Constitution relating to Royal land.

My principal finding, therefore, is that the whole of the allotment in question is part of the Royal Estate of Kanokupolu and, as such, it was never land available for allocation as an hereditary estate.

Even had I found substance, however, in Mr Niu's submission that section 10 of the Land Act was ultra vires clause 48 of the Constitution, I still would not have been prepared to uphold the plaintiff's claim because I am not satisfied that he is entitled to be registered as titleholder to the land. No documentary evidence was produced to show that King George Tupou 1 had made the original grant to the plaintiff's great-grandfather, Viliami Lomu. Mr Niu certainly made that statement numerous times in his submissions but not one word was said about it by any of the witnesses -- not even the plaintiff. When the plaintiff was asked where his grandfather had got the tax allotment from, he replied:

"I was told by Ngahe (the grandfather) that it was originally owned by his parents."

So there is nothing before the Court, apart from Counsel's submissions (which do not amount to evidence) as to the circumstances surrounding the original grant or its terms. Mr Niu invited the Court to conclude that the Minister of Lands must have been satisfied that the grant by King George Tupou 1 to Viliami Lomu was an hereditary grant otherwise the Minister would not have registered Viliami's widow as the titleholder in 1917. Counsel, however, is inviting the Court to make and act upon an assumption. There is simply no evidence before the Court, and there was certainly no documentary evidence produced from the Land's Office, to show the basis upon which the widow became the registered titleholder. In any event, for the reasons already discussed, there must be doubts as to the legality of the widow's registration as titleholder in respect of an allotment that was clearly situated on land belonging to the King.

There is another difficulty with the plaintiff's claim which relates to the way in which he acquired title to the property upon the surrender of the land by his older brother. There is evidence before the Court that by 1997 when the plaintiff was registered as titleholder to the whole 10a 3r 1.5p allotment at Kanokupolu, the estate had already been broken down into a town allotment and a tax allotment but, rather surprisingly, the plaintiff's application for the allotment or allotments was never produced as an exhibit and, in the absence of the issuance of any deed of grant, I found the evidence as to the partition of the original allotment rather inconclusive.

Accepting, however, that the plaintiff took title to the whole of the Kanokupolu allotment following on from his older brother's surrender of the land, there is no evidence that the original grant to the plaintiff's great-grandfather ever included conditions relating to election and surrender. It appears that the legislative provisions giving an heir the option to surrender one allotment in favour of another appeared for the first time in the 1927 Land Act. It is highly improbable, therefore, that an hereditary grant made towards the end of the 19th century would have included conditions relating to surrender. The Assessor informs me that the election and surrender provisions provided for in the Land Act 1927 were never part of the customary land law of the Kingdom.

Even had the plaintiff, therefore, been able to persuade the Court as to the validity of the purported hereditary grant to his great-grandfather, his claim still could not have succeeded because at the point in time when his older brother surrendered the land in question, title would have reverted to the King. For the avoidance of doubt, however, I repeat the Court's principal finding is that the allotment in question is part of the Kanokupolu Royal Estate and, as such, it was never land available for allocation as an hereditary estate.

For these reasons, the plaintiff's application for an order requiring the defendant to remove all buildings from the land in question must fail. I am not satisfied that he has title to the allotment. No cross orders were sought by the Crown. The defendants are entitled to costs (one set of costs only as between the second and third defendants) to be agreed or taxed.

NUKU'ALOFA: 31 JANUARY 2005

JUDGE