Ma'ake v Lataimu'a [2007] TOSC 3; LA13-2004 (8 March 2007)

IN THE SUPREME COURT OF TONGA
LAND JURISDICTION

NUKU’ALOFA REGISTRY NO. LA13/2004.

BETWEEN:

NGUNGUTAU MA’AKE
Plaintiff

AND:

1. SIONE MA’AKE LATAIMU’A
2. NOBLE FAKAFANUA
3. MINISTER OF LANDS
Defendants

BEFORE THE HON. CHIEF JUSTICE FORD

Assessor: Mr George Blake

Counsel: Mr Niu for the plaintiff,
Mr Fakahua for the first defendant,
no appearance for the second defendant;
Mr Sisifa for the third defendant.

Date of hearing: 11, 12, 13, 14, 15 December 2006.
Dates of written submissions: 22 January, 20 and 26 February 2007.
Date of judgment: 8 March 2007.

JUDGMENT

Introduction

[1] The principal parties are relatives. The plaintiff is the first defendant's uncle. He is the youngest brother of the first defendant's father. The second defendant, Noble Fakafanua, is the lawful holder of the estate of Ma'ufanga in Tongatapu. The estate holder at the time of the events giving rise to the claim before the court passed away in May 2004 and his son and immediate heir is also now deceased. The current estate holder has taken no part in the proceedings. The third defendant, the Minister of Lands, did file a statement of defence and was represented at the hearing although no evidence was called on his behalf. In the circumstances, for ease of reference, in this judgment I will refer to the first defendant either by his first name "Sione" or simply as "the defendant". I will refer to the second defendant either by his title or simply as "the estate holder" or "the Noble" and I will refer to the third defendant as the "Minister of Lands" or the "Minister".

[2] The dispute relates to a town allotment in Ma'ufanga. The defendant has been the registered titleholder to the allotment since August 2004. After being issued with his deed of grant, the defendant took out a mortgage with the ANZ Bank and commenced building a new house on the land. At that point, the plaintiff, who resides in America, made a successful application to the Land Court for an injunction restraining the defendant from continuing with construction work.

[3] The grounds for the injunction application were that 24 years earlier the allotment had been promised to the plaintiff by the estate holder and the plaintiff had then built a dwelling house on the land which was still on the allotment and occupied at the time the deed of grant was issued to the defendant. In other words, the plaintiff contends that the allotment in question was not available for allocation by the Minister of Lands to the defendant. In this proceeding, the plaintiff seeks orders for cancellation of the defendant's registration and deed of grant and the issuance of a new deed of grant in his favour along with damages in the sum of $4,000 for the destruction of his house and an order requiring the defendant to remove whatever he has constructed on the land.


The case for the plaintiff

[4] The 49-year-old plaintiff was born in Ha'apai as the youngest of 12 children - 8 girls and 4 sons. His parents were Sione and Malia Ma'ake. His family moved to Tongatapu in 1964 and the plaintiff lived with his parents in a house at Ma'ufanga three houses along the road from the allotment in question. At that stage, the allotment in question was part of a larger town allotment situated on a sharp bend in Hekoni Road containing 1 rood 24.1 perches. The allotment was known as "Pukolei" and was held by an elderly gentleman called 'Atonio Langi.

[5] 'Atonio was the plaintiff's uncle. He was the plaintiff's mother's brother. He had been a police officer. He had also been married but it would appear from the evidence that at all relevant times he was living apart from his wife. He lived on his own at the rear of the allotment. Towards the end of his life 'Atonio did not enjoy good health and he required looking after by other members of his family. He was said to be in his late 70s when he died on 16 July 1986. Prior to then he had moved into the plaintiff's parents house and he was being looked after by the plaintiff's sister and elderly mother. In this judgment I shall refer to the allotment before it was subdivided into two separate allotments as "'Atonio's allotment".


[6] The plaintiff married in November 1977 and he and his wife lived in a timber house they had built at the back of his parent's allotment. In 1980 the plaintiff's father passed away and after the funeral all the family assembled for a family meeting. At that meeting it was decided that the plaintiff and his wife should move off the allotment and the family home should be occupied by the widow and the daughters. The plaintiff's mother told the plaintiff to approach her brother 'Atonio just along the road to see if they could live with him until they could find an allotment of their own. 'Atonio agreed and the couple began living with him in his concrete block house.

[7] The plaintiff told the court that he and 'Atonio talked many times about the possibility of 'Atonio surrendering the front half of his allotment to the plaintiff so that he could build his own home on the land. Eventually 'Atonio agreed. The plaintiff and 'Atonio then had a meeting with the Minister of Lands, Hon Tuita. A clerk in the Lands Office wrote out a surrender letter for 'Atonio to sign and then the plaintiff was given an application form and told to take it to the estate holder, Hon Fakafanua, for signing.

[8] A short time later, the plaintiff and his wife arranged to go and see the estate holder and they took with them some gifts in the form of a pig and other food along with Tongan artefacts, namely, tapas and fine mats. The Noble did not sign the application form which would have authorised the Minister of Lands to subdivide off the surrendered land and grant the same to the plaintiff. Instead, he told the plaintiff to go and build on the land. He also made the comment that, "come the day when 'Atonio passes away, you (the plaintiff) will get the whole allotment anyway because it is all in the name of your mother's family."

[9] Given that assurance, the plaintiff returned home but he told the court that later he began having doubts about the situation and so he returned to see the Noble and took similar gifts. Again, the Noble did not sign the application form but he repeated his call for the plaintiff to go and build on the land. Fakafanua also made the comment that should the land be subdivided then the allotments would be "very small".

[10] The plaintiff said that he duly reported the Noble's advice to his uncle, 'Atonio, and his uncle agreed to his going ahead and building on the front half of his allotment. The plaintiff, with assistance from his brother and nephew, proceeded to dismantle his house at the back of his parent's allotment and they used the good materials from that building plus additional timber to build a wooden house on the front of 'Atonio's allotment. He then had the house connected up to the electricity supply, the water supply and the telephone company. The plaintiff estimated the value of the house when it was built in 1980 at approximately $4,000.

[11] In 1982 the plaintiff travelled to Australia to try and raise money for his family. His wife and children remained in Tonga. Then in November 1983 the plaintiff travelled to America and began working in the construction industry. In March 1984 his wife and children joined him and they have remained living in California ever since. Their home is in San Diego. They had three children before they left Tonga and they have had another seven children since moving to the States. The plaintiff does not keep good health and he has a serious heart condition which requires monitoring. His wife is the sole breadwinner. She works for a home healthcare company, sometimes working up to 80 hours a week.

[12] The plaintiff's intention when he moved his family to the United States in 1984 was to earn money and eventually return to Tonga and build a more substantial house on his allotment. His wife said in her evidence that that is still their intention. When the family moved to the States, the plaintiff left his house in the care of his sister Lotolangi and her husband, Polonga Sika but in 1989 they also moved to the United States. The plaintiff then left his house in the care of another sister, Ngahaukoula Ngahe (who I shall refer to as "Ngahau") and over the ensuing years she has approved a number of different occupants. None of the occupants paid any rent but Ngahau said that they were expected to look after the property. Significantly, in the context of the present proceedings, the occupants included at various times from 1986, the plaintiff and his brother from Ha'apai and the plaintiff's mother and his sisters.

[13] Up until late September 2004 when the plaintiff visited Tonga in connection with the present dispute, he had only returned to Tonga once since moving to the United States and that was in 1992 when his mother fell ill. The plaintiff told the court how on two occasions the defendant contacted him in the United States by telephone in connection with the allotment in question. He could not recall the exact year when the first call was made but he agreed that it could have been in January 2004 and he confirmed that on that occasion the defendant said that he wanted to make application to register the allotment in his own name and build a larger house which could be used by relatives from overseas and the outer islands. The plaintiff said in evidence: "I told him I did not agree. I told him "no"." He also made the comment that if he had of agreed to something important like that then he would have confirmed it in writing.

[14] The second telephone call, according to the plaintiff, came in September 2004. In cross-examination he said that the defendant "cheated" him on that occasion because when he rang, he asked whether he could register the allotment and build a new house to accommodate family relatives travelling from overseas and the outer islands but, unbeknown to the plaintiff, he (the defendant) had already, in August 2004, registered the allotment in his own name. The plaintiff said that shortly after that call, he received a telephone call from his sister, Ngahau, in which she informed him that she had heard that the first defendant had registered the allotment. The plaintiff then travelled to Tonga. In examination in chief he said that he arrived in Tonga about a week after receiving the telephone call from his sister.

[15] Although the date was not pinpointed in evidence, it would appear that the date of the plaintiff’s arrival in Tonga was Thursday 30 September 2004. He said that he went straight to the Ministry of Lands and found that the allotment in question had indeed been registered in the defendant's name. He then went to see a lawyer, Mr Niu, who drafted a letter on his behalf to the Minister of Lands. I set the letter out in full:

"30th September 2004
Hon Fielakepa
Officer of the Minister of Lands
Nuku'alofa

Dear Sir,

Re: Mr Ngungutau Ma'ake Ma'ufanga
Re: town allotment Book 372 Folio 84
Registered on Sione Ma'ake Lataimu'a 17th August 2004

I respectfully ask on behalf of Ngungutau Ma'ake that you would please cancel the above registration of Sione Ma'ake Lataimu'a.

This allotment was originally part of town allotment of 'Atonio Langi which was registered on 3/11/1954 (Book 86 Folio 43). He was an uncle (mother's brother) of Ngungutau. He agreed to surrender it so that Ngungatau could register part of it as his town allotment. After the surrender, Fakafanua told him to build his house on it before he could be registered. He built his house in or about 1980 and lived in it. He did not get around to having a registered.

In 1983, he went to the US and he got his sister, Langi Sika, to live in and look after his house. In 1989, his sister went to the US as well and her family looked after the house and allotment for Ngungutau until 1996 when they shifted. Naumanuka Lataimu'a then asked Ngungutau if his sister, Koltile, would stay in the house. He agreed and she did and she is still occupying it for Ngungutau up to now.

Unknown to Ngungutau, and whilst his house was still on the allotment, occupied by people he had approved, you have registered Sione ma'ake Lataimu'a as holder of this town allotment on 17/8/2004. It is clear that you were not informed of the above history and the fact that Ngungutau lawfully had his house on this land in pursuance of approval given to him by the late Fakafanua in anticipation of registration in his name.

I believe that the grant and registration which has been in Sione Ma'ake Lataimu'a's name is accordingly invalid. This land was not available to be granted, and you were misled by Sione Ma'ake Lataimu'a's failure to inform you of Ngungutau's occupation of it.
I would therefore ask that you please summon Sione Ma'ake Lataimu'a and my client to your office right away to inform Sione of the decision to cancel his registration.

My client says that a container of building material has been brought onto the land by Sione Ma'ake Lataimu'a for purpose (sic) of construction. It is imperative that you please take immediate steps to prevent any further unnecessary loss to the parties.


Yours faithfully,
Laki M Niu
Barrister & Solicitor

cc: Sione Ma'ake Lataimu'a"

[16] The plaintiff then went to the allotment in question and noticed that the toa trees out the front, which he had planted, had been cut down. His house was still standing, however, and it was then being occupied by the defendant's mother, Patisepa, and two of her daughters. The plaintiff took with him a copy of Mr Niu's letter and he served it on Patisepa. It is not clear how much of the letter, if any, Patisepa understood because it was written in English but one of her daughters apparently was familiar with the English language. The plaintiff explained to Patisepa that the letter had to get to the defendant, who was living up in Ha'apai, urgently.

[17] The defendant was greeted by Patisepa and her daughters and by his own family. The following day they had a family get-together. One of his sisters brought food and, in Tongan custom, they had a prayer session. At one point Patisepa told the plaintiff that her son, the defendant, had a right to the allotment because he had telephoned the plaintiff and the plaintiff had agreed. The plaintiff denied that he had ever agreed. He told Patisepa that if he had of agreed and said "yes", as the defendant claimed, then he would not have wasted money coming to Tonga from America to confront the defendant. He said Patisepa then cried and pleaded with him stressing that her son was part of the plaintiff's family. The plaintiff asked her to get her son on the telephone so that he could speak to him.

[18] The subsequent sequence of events was not entirely clear from the plaintiff's evidence. He said that he was told that the defendant was very busy preparing for School examinations and he was unable to travel down from Ha'apai. He also told the court that one of the defendant's sisters told him that the defendant was going to surrender the land back to him and the surrender letter was being sent down on the plane from Ha'apai. The letter never arrived but on the morning that the plaintiff was due to fly back to the United States (a week after his arrival) he received a telephone call from the defendant.
[19] According to the plaintiff's evidence, the defendant apologised and explained that he was very busy with college entrance examinations. He told the plaintiff not to be upset and he said that the only reason he registered the land was so that he could take out a loan with the bank and build a house for the family's welfare and it was going to be worth $90,000. He also told the plaintiff that a surrender letter was going to be given to the pilot to take to Tongatapu the following day. The plaintiff said that he was surprised when this remark was made because earlier he had been told that the surrender letter had already been sent. In any event, no letter was ever received. The plaintiff was unable to extend his stay in Tonga and so he flew back to the United States that same afternoon.

[20] Not long after he returned to the United States, the plaintiff was informed by Ngahau that the defendant had demolished his (the plaintiff's) house on the allotment in question and he was proceeding to lay the foundations for his new house. The plaintiff again instructed Mr Niu in the matter and on 23 November 2004, counsel applied successfully to this court for an injunction restraining the defendant from carrying out any further construction work.

[21] In cross-examination, the plaintiff spoke about his fatherly duties to the defendant (in Tongan culture, a paternal uncle is regarded as a father) to teach him to do things in a proper way. He said:

"I tried to sit down and talk -- he was too busy to come from Ha'apai. I sat there while telephone calls were carried out and all I heard was that he was too busy with exams. I loved Sione (the defendant). I wanted to see him face-to-face. I would have given him the land because he had already registered it."

[22] The plaintiff went on in cross-examination to say, "the son had lived in the father's home. I had shown them love. I had allowed them to live in my house." The plaintiff denied ever agreeing to the defendant's proposal to have the land registered in his name. When pressed on this point in cross-examination, he said to defence counsel: "I am telling you that I said "no" from day one and I am still saying "no" today." The plaintiff was closely cross-examined as to why he had made no further efforts to register the allotment since 1980. He told Mr Fakahua that it was because the Noble had told him to go and build on the land and the land belonged to his mother.

[23] The plaintiff's 49-year-old wife, Seilala, gave evidence. She described going with her husband to see the estate holder on the first occasion but she could not recall seeing him on a second occasion. Her recollection was that on the second occasion they met with the estate holder's wife, Kalo, and she had told them that her husband was not home but when he returned home she would tell him that the plaintiff had come to check whether he had signed the application form authorising the allocation of the allotment in question to the plaintiff.

[24] The witness described, reaffirming the plaintiff's evidence in this regard, how they had continued to pay traditional homage to the estate holder over the years and on one occasion when the estate holder visited San Diego for a funeral, the plaintiff presented him with gifts. Referring to the telephone calls the defendant made to the plaintiff in the United States, Seilala told the court that she could recall one occasion when Sione had telephoned about the allotment. She had not been at home at the time but when she returned home the plaintiff told her that Sione had telephoned and he wished the allotment to be registered in his name. Seilala asked the plaintiff how he had responded and he replied that he had told him, "no". Seilala could not recall exactly when that phone conversation took place.

[25] Referring to the plaintiff's visit to Tonga in September 2004, Seilala said that she recalled arriving home from work one day and the plaintiff told her to go and purchase an air ticket for him to travel to Tonga because he had heard that Sione had registered the allotment in his name. The witness said that her particular concern was having to pay for the tickets. She was also worried about the plaintiff's health and for that reason she purchased a ticket for their son to accompany the plaintiff on the journey. Seilala told the court that after the plaintiff returned from Tonga on that occasion he was readmitted to hospital because of his heart condition and he was kept in intensive care for 1 1/2 weeks. The heart specialist recommended that the plaintiff should never work again.

[26] The next witness for the plaintiff was his 61-year-old sister, Ngahau. She said that she lived in her parents' former home three allotments away from the allotment in question. Ngahau told how she and her late mother looked after 'Atonio in the final years of his life and he actually moved into their home for a period. She said that she was aware that 'Atonio had surrendered the front half of his allotment to the plaintiff because one day after her mother had passed away, she was tidying up her mother's possessions at her home and she found a letter and a map (deed) of 'Atonio's allotment in an envelope. Ngahau said that she did not read the whole of the letter but she read the opening part. It was in 'Atonio's handwriting and it was addressed to the Noble Hon. Fakafanua and she recalled that, in the part that she read, 'Atonio confirmed that he wished to surrender his allotment. Ngahau did not discuss the letter with anyone at the time. She said she replaced it in the envelope and put it back with her mother's possessions. She did say, however, that when the plaintiff came out to Tonga in September 2004 she had actually given him the envelope. In his evidence, the plaintiff had not mentioned this development.


[27] Ngahau also gave evidence about her telephone conversation with the plaintiff in September 2004 when she passed on information that the defendant had registered the allotment in his own name. She said that she was most disappointed with Sione over what he had done because it was she who had brought his family onto the allotment in the first place as tenants. Ngahau described how, not long after the plaintiff returned to the United States in October 2004, she noticed one morning as she returned home from church that the defendant had demolished the plaintiff's house on the allotment. It was put to her in cross-examination that in anger she had approached the defendant at that point and had slapped him on the face. She said that she had tried to do that but he had brushed her hand aside.

[28] With leave, the plaintiff was recalled to the witness stand and asked about the surrender letter Ngahau had spoken about. The plaintiff admitted that the letter had been given to him. He said that he read it and took it back to the United States intending to take a photocopy of it but after his return to the States he had been hospitalised in intensive care. Upon his discharge from hospital the family had moved into a new house and somewhere along the lines the surrender letter had been lost. The plaintiff was asked why he had not mentioned the letter in his evidence and he said that he had not referred to it because, although he had searched, he had been unable to locate the letter and he did not think that it was permissible to refer to something in evidence in court which he could not prove. He was also asked why he had not handed the letter to Mr Niu. He said that Ngahau had not given him the letter until after he had seen Mr Niu and, at that stage, he was still hopeful that after the defendant had read the copy of Mr Niu's letter to the Minister of Lands, they would be able to work something out between them in relation to the allotment. As the plaintiff expressed it, "at that stage, I did not think that it would come to this" (meaning the court case).


The defence evidence

[29] The first witness for the defence was an officer from the ANZ bank who confirmed that in about October 2004 the bank had granted a loan of $80,000 to the defendant and his wife secured over the allotment in question. Approximately $30,000 of the loan was to refinance an existing loan with another bank, a significant part of which had already been applied towards the construction of the new house. Of the total loan approved, it appears that approximately $54,000 had already been advanced to the defendant and his wife by the time the ANZ bank learned of the injunction and stopped any further advances. The records show that since then the defendant has made fairly regular repayments on account of the mortgage but because of interest and other charges, including "late payment fees", the balance owing under the ANZ bank loan as at 30 November 2006 was still $57,306.99.
[30] The 39-year-old defendant, Sione Ma'ake Lataimu'a, holds the role, formerly held by his grandfather Sione Ma'ake, of matapule or "talking chief" to the Noble Hon Tu'ita. His matapule name is "Pouanga". He is currently a schoolteacher at Ha'apai College. His wife is also a schoolteacher at Ha'apai. The couple married in March 2001 and they have two children.

[31] Sione told the court, with some welcome precision as to dates, of his involvement with the allotment in question since he and his brother moved down from Ha'apai to attend school in Tongatapu in 1986. They lived in the plaintiff's house. He said that his first contact with the plaintiff came in June and July 2003 when he telephoned him in the United States from Ha'apai. He said that his telephone call followed on from a family meeting where it had been suggested and he agreed that he should build a bigger and better house on the allotment which could be used by his family from Ha'apai whenever they visited Tongatapu as well as other relatives from overseas. He said that his mother, Patisepa, had told him to contact the plaintiff in the United States and tell him about the proposal.

[32] Referring to the telephone conversation, the defendant said that the plaintiff answered the telephone and initially they spoke about family matters and then the plaintiff asked him why he had called. The defendant said:

"I told him the reason I am ringing is that I want to register the allotment so that I can get a loan and build a better house so that when we come from Ha'apai as well as relatives from overseas, we can stay there."

According to the defendant, the plaintiff first asked about the back half of the allotment where 'Atonio had resided and suggested that he should register that land but he explained to the plaintiff that the back half of the allotment had already been registered by someone else. The plaintiff allegedly then said: " That's very well Sione, just see what Fakafanua says. If Fakafanua agrees then register the allotment." That conversation which allegedly took place in June or July 2003 was never put to the plaintiff in cross examination. It should have been.

[33] The defendant then referred in his evidence to a second telephone conversation he had with the plaintiff on 20 January 2004, the day before he saw the estate holder, Hon Fakafanua. He explained how he had come from Ha'apai to Tongatapu on that occasion and had told his mother who was then occupying the plaintiff's house to get ready because he was going to see Fakafanua to sign his application for the allotment in question. His mother then told him to telephone the plaintiff in the United States because she wanted to make sure that there was still a good relationship between them. The defendant duly telephoned the plaintiff and he told the court that the plaintiff gave him the same answer as before, suggesting that he check the matter out with the estate holder.
[34] The following day the defendant went to see the estate holder with his mother and other siblings. He took with him three watermelons and an envelope which contained $1000. He said that Hon Fakafanua recognised him as a talking chief and they spoke about his matapule role. When he went on to explain the purpose of his visit, the estate holder asked him about his family connections and when he mentioned that his grandfather was Sione Ma'ake they spoke about him for some time because Fakafanua was well acquainted with the grandfather. Hon Fakafanua then asked the defendant if he had brought an application form with him and when he produced the form the estate holder immediately signed. The defendant then had the application form delivered to the Ministry of Lands and his deed of grant to the allotment in question was eventually issued on 17 August 2004. In cross-examination the defendant conceded that three watermelons would not have been regarded as an appropriate gift in the circumstances but he had the envelope containing the money in the top pocket of his shirt and the estate holder would have known full well that in addition to the watermelons, the defendant was also proposing to pay him a sum of money.

[35] The defendant said that his next telephone conversation with the plaintiff came in September 2004. He said that he telephoned him on that occasion to inform him that his loan had been approved and he was going to "tear the old house down." The defendant told the court that the plaintiff was very upset with him on that occasion for having registered the land in his name.

[36] In cross examination, the defendant was asked about the plaintiff's visit to Tonga at the end of September 2004. The defendant had said in evidence that he was unable to travel down from Ha'apai on that occasion because he was preparing for school examinations. It was put to him that in the course of a telephone conversation he had with the plaintiff, he had told the plaintiff that he would be sending down a letter surrendering the land back to the plaintiff. The defendant agreed with that proposition but he said the reason he had made that statement was because his mother, Patisepa, was afraid because the plaintiff had taken the matter to a lawyer.

[37] The defendant was also closely cross-examined about his first statement of defence which was prepared by his uncle, 'Akilisi Pohiva, on instructions from the defendant and filed on 3 December 2004. Specifically, the defendant was pressed about why, if the plaintiff had agreed to him registering the allotment in his name, he had not simply stated that in his statement of defence. The statement of defence spoke about the plaintiff having a right to the allotment because 'Atonio was his father's uncle but it did not state anywhere that the plaintiff had also agreed in a telephone conversation from America that the defendant could have the allotment granted to himself.
[38] In response, the defendant said that he did not have any knowledge of legal matters but he had told Mr Pohiva that the plaintiff had agreed in two telephone conversations to him having the land transferred into his name and it was Mr Pohiva who prepared the statement of defence. He said that he did not contact a lawyer until a later stage. Mr Pohiva was not called as a defence witness.

[39] The defendant's wife, Falakika, was the next witness for the defence. She gave evidence about the two telephone conversations her husband had had with the plaintiff in 2003 and January 2004. She said that after the calls her husband had confirmed that the plaintiff had agreed to his being granted the allotment. The witness also spoke in cross-examination about another point which assumed some significance. She had not mentioned the matter in her examination in chief because, as she put it, she had not been asked about it, but referring to when she and her husband went to see the estate holder on 21 January 2004, she said that after her husband had explained the purpose of their visit to the estate holder, the estate holder had asked the defendant which allotment it was that he was wanting to acquire and before her husband could reply, the estate holder's wife, Kalo, who was also present, said, "the allotment that Ngahau had repeatedly come about."

[40] The significance of that remark was that one of the points the defendant had made in evidence was that he believed the plaintiff had always been ready and willing to allow the allotment to be granted to him and was only after his older sister, Ngahau, "interfered" in September 2004 that he had second thoughts and changed his mind. The defendant said that he suspected that Ngahau really wanted the allotment in question for one of her own two sons.

[41] With leave, Ngahau was recalled to the witness box and she denied ever having seen the estate holder about the allotment in question and she also strongly denied causing the plaintiff to change his mind or ever wanting the allotment for one or other of her two sons. She said that her sons were now 35 and 31 years of age respectively and if that had ever been her intention then she would have seen that the son had acquired the allotment long ago.

[42] Evidence was also given by the defendant's 32-year-old sister, Malia. She spoke about the visit she made to the estate holder with the defendant and others on 21 January 2004. She also described the rundown state of the plaintiff's house on the allotment.




The law

[43] The legal position in relation to any challenge to a registered deed of grant has often been stated. 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. is contrary to the Act) or as a result of fraud, mistake, breach of promise made by the Minister or estate holder or breach of the principles of natural justice. If land is "unavailable" to be granted because it is subject to some other claim then that might be an impediment which would make registration contrary to the Act and, hence, liable to be set aside.


Discussion

[44] The plaintiff pleads that the grant of the allotment to the defendant was unlawful for reasons he enumerates in paragraph 17 of his statement of claim. In particular, he contends that the land "was not vacant and available land for grant because of its lawful occupation by the plaintiff and his dwellinghouse thereon." He also pleads fraud on the part of the defendant in failing to inform the estate holder and the Ministry of Lands that the plaintiff had a dwelling house on the allotment and he (the plaintiff) needed to, therefore, be consulted.

[45] In response, the defendant alleges that the plaintiff was estopped from denying that he had given his verbal consent to the land being granted to the defendant. The defendant also pleads in paragraph 12 of his amended statement of defence that the plaintiff is not the landholder so neither the defendant or the estate holder were to notify the plaintiff regarding the application.

[46] My finding is that the defendant had been told by the estate holder in 1980 to go and build on the land and he had been promised the land after 'Atonio died. It is significant, in this regard, that after 'Atonio's death in July 1986, neither the plaintiff nor any other person made an heir's claim to 'Atonio's allotment within the statutory 12 months period and so the land reverted to the estate holder. The Registrar of Lands, Mr Matekitonga, told the court that by this time the estate holder, Hon Fakafanua, also held the title of Minister of Lands and after 'Atonio's allotment had reverted to him he (the estate holder/Minister) arranged for it to be subdivided into two separate allotments each containing 32 perches. The rear allotment was then granted by the estate holder to some other person but the front allotment on which stood the dwellinghouse erected by the plaintiff back in 1980 remained unallocated.

[47] As noted earlier in this judgment, the estate holder died in May 2004 and so the court has no first-hand evidence as to his thinking but, in the absence of any other evidence on the subject, my conclusion on the evidence is that the fact that the estate holder was prepared to go to the trouble and expense of subdividing the allotment into two and yet be content with not proceeding to try and allocate the front allotment to anyone else was tacit recognition by the estate holder of the plaintiff's interest in that particular allotment. In other words, the estate holder remembered and recognised that he had promised that particular allotment to the plaintiff back in 1980 when he had told him to go and build on the land. Acting on that direction, the plaintiff had proceeded to erect a dwelling house on the land. The estate holder would have been keenly aware that the plaintiff's house was still standing on the allotment and he was content simply to leave matters as they stood until such time as the plaintiff took some further formal step to have the allotment registered in his own name. Against that background, at all material times the allotment in question was not "available" land in terms of the criteria contemplated in the Land Act to be granted to the defendant or anyone else apart from the plaintiff.

[48] There is one factual matter relevant to this finding which should be mentioned at this point. At an early stage during the hearing, the Land Assessor, Mr George Blake, advised the court that to his knowledge at least 50% of the town allotments in the hereditary estate of Ma'ufanga (the estate of Hon Fakafanua), are held by unregistered occupiers. In other words, for whatever reason, the estate holder has historically been content to allow people to continue in occupation and to recognise their entitlement to an allotment, without them having to become registered titleholders. That information was duly passed onto counsel and they were given the opportunity to call evidence and cross-examine on the point if they wished. As it turned out, the only evidence given which touched upon the matter confirmed the accuracy of the observation made by the Land Assessor.

[49] My finding, therefore, is that in 1980 the estate holder told the plaintiff to go and build on the land, which he did, and thereafter the estate holder was happy to recognise that the land was held, unregistered, for the plaintiff and that remained the situation for almost 24 years until the defendant appeared on the scene and filed his application for a deed of grant on 13 November 2003. In his submissions, Mr Fakahua was critical of the plaintiff's failure to take other steps subsequent to 1980 to have the allotment transferred into his own name. He submitted that the plaintiff had "an obligation to approach the estate holder" in this regard. Mr Niu in response, however, made the point that "a person may lawfully occupy or reside upon a piece of land, although he has not been granted that land by way of a town or tax allotment, lease, sublease or permit (refer ss. 8 and 50 of the Land Act) . ... The only requirement is that the applicant must be lawfully residing in the estate (Noble's or Crown estate)." Mr Niu's submission is plainly correct and I upheld a similar submission in Tafa v Viau anors (unreported) No. LA 15/2005 (judgment dated 24 April 2006 a decision which was subsequently upheld on appeal.

[50] In the present case, Mr Niu developed his argument further and submitted that once a person is lawfully in occupation of an allotment there are only limited ways recognised under the Land Act whereby he can be dispossessed. In counsel's words:

"There is a difference in the mode of termination of lawful occupation of a person on land of an allotment and on land of an estate. With regard to an allotment, the termination occurs upon the person vacating the allotment or upon the death of the allotment holder, and where estoppel operates, upon the death of his widow. This is because the allotment is hereditary and the heir has the right to succeed to the totality of the interests and rights of the holder of the allotment (except where mortgagees' rights subsist)."

The defendants did not dispute Mr Niu's analysis in this regard of the legal position under the Act.

[51] The key question thus becomes whether the plaintiff agreed, as the defendant contends, in the two telephone conversations in June/July 2003 and January 2004 respectively, to allow the allotment to be granted to the defendant. This question, in turn, raises issues of credibility. The first point I make is that I am not satisfied that any call was made in June or July 2003. As I have observed, that proposition was never put to the plaintiff in cross examination and he, the plaintiff, referred to only two calls – the first, which he accepted was probably the call in January 2004 and the other in September 2004.

[52] As the allegation that the plaintiff had consented was one that had been advanced by the defendant, the onus was upon the defendant to prove, upon the balance of probabilities, that the plaintiff had in fact consented. On the issue of credibility, I find significant force in the following submission made by Mr Niu:

"Furthermore, the conduct of the plaintiff was consistent with his alarm and shock that the defendant had gone and registered the allotment. He straightaway flew to Tonga, went to the land office, went and saw counsel who wrote a letter which he delivered right away upon the defendant's mother. He insisted that the defendant come from Ha'apai and face him for the wrong which he had done to him. When the defendant did not come, he insisted that he write and cancel the registration of the allotment. And when the defendant proceeded instead to tear down his house and to build his own house on the allotment instead, he instructed counsel to file this action immediately. He had paid and has maintained the security for costs of $10,000 in court and has come to Tonga with his wife and given evidence in pursuance of his claim."

[53] I am also influenced by the evidence relating to the telephone call the plaintiff had with the defendant during his September 2004 visit to Tonga when the plaintiff was in Tongatapu and the defendant was still up in Ha'apai. The evidence was that in the course of that telephone conversation, when the plaintiff confronted the defendant about the action he had taken in having the allotment registered in his own name, the defendant did not immediately challenge him, as one would expect if the allegation was true, and remind him that he (the plaintiff) had twice in telephone conversations given his express consent to what had happened but, on the contrary, the defendant rather meekly responded that he would sign a letter surrendering the land back to the plaintiff and give it to the pilot to take down to Tongatapu. That action can only be construed as an acceptance by the defendant that the plaintiff had never consented.

[54] At the end of his evidence the defendant was asked by the court whether he would still have gone ahead and demolished the plaintiff's house and built on the allotment had the plaintiff not consented in the telephone conversations, as he had alleged, to the land being granted to him. Although the question from his point of view was hypothetical, the defendant had no hesitation in confirming that he would still have gone ahead. I found that frank admission both relevant and significant. It is an answer to the proposition defence counsel could have raised, namely, why would the defendant have demolished the plaintiff's house and build another house on the allotment if the plaintiff had not expressly approved.

[55] I must say that, although his evidence at times was somewhat vague in relation to certain things such as specific dates, on this important aspect of the case, namely, whether the plaintiff gave his consent to the allotment being granted to the defendant, I found the plaintiff a particularly decisive and credible witness and I accept what he told the court that at no time did he, in fact, give his consent to the allotment being granted to the defendant. My finding, therefore, is that, the defendant has failed to persuade me that the plaintiff had ever given his consent to the grant of the allotment to the defendant.


Conclusions

[56] My finding that the plaintiff at no time gave his consent to the registration of the allotment in the defendant's name means that the land was not "available" to be granted to the defendant and, as the Court of Appeal stated in Tafa v Viau [2006] TOCA 6 [p11] availability is an essential element before a grant can be made. In the same paragraph, the Court of Appeal referred to the prescribed application form for registration and noted the requirement for the estate holder to sign the declaration contained in the form, "that there is no impediment to this grant." It is an important declaration because if the land is not "available" then that clearly would be an impediment to the grant. There was, therefore, an obligation upon the estate holder to take reasonable steps to ensure that the plaintiff had in fact given his consent to the grant before he (the estate holder) signed the declaration in the defendant's application form. The estate holder should not simply have relied upon the applicant (the defendant) in this regard but he should have taken appropriate steps himself to contact the plaintiff and check out the position and ensure that his consent was forthcoming. The estate holder failed to take these steps and, as Mr Niu expressed it, "hence the tale of woe that has transpired as a result in this case."

[57] For the reasons stated, the plaintiff, thus, succeeds in his claim. Mr Niu applied during the hearing to amend his prayer for relief to seek an order directing the Minister of Lands to cancel the registration and deed of grant of the defendant (Tohi 372 Folio 84) dated 17 August 2004 and issue a new deed of grant of the town allotment in question to the plaintiff. Although defence counsel objected to the late application, the amended prayer is similar to the relief sought under paragraph (d) of the existing prayer for relief, with the addition of the request for the issuance of a new deed of grant in favour of the plaintiff. I am persuaded that the justice of the case requires me to allow the amendment and I hereby do so and I make the order sought.

[58] The plaintiff also seeks by way of amendment to the prayer for relief an order for damages in the sum of $4000 against the defendant for having demolished and disposed of the plaintiff's house. It is unfortunate that counsel for the plaintiff did not see fit to seek leave to make these amendments to the pleadings prior to the commencement of the hearing but I accept that the relief formulated as a claim for damages is appropriate and I allow the further amendment. Although the figure of $4000 was mentioned by the plaintiff as his estimate of the value of his house when it was dismantled, I did not find his evidence on this point persuasive. The defendant, on the other hand, pleaded that the value of the plaintiff's house was approximately $800 but he called no evidence to support that figure. He did, however, say that it took only 1 1/2 hours to have the house demolished. Doing the best that I can from the evidence before the court, I would allow $1000 under this head and the plaintiff is awarded damages in that amount.

[59] The plaintiff further seeks an order that the defendant "remove all things he has built and brought onto the land of the said allotment, and restores the land to its level and compact condition." I am not prepared to make such an order at this stage simply because I have not been persuaded that such an order is necessary or desirable. There was no evidence relating to the standard of workmanship of the limited amount of construction work carried out on the new dwelling house prior to the injunction in November 2004. It may well be, and I would certainly encourage this approach, that given the family connection, both parties may be able to reach an acceptable compromise in relation to the partially completed dwelling house without this court having to order its complete demolition. If necessary, however, I grant leave for either party to file a memorandum.

[60] The plaintiff is entitled to costs to be agreed or taxed. He seeks costs against the defendant, the estate holder and the Minister jointly and severally. Although counsel for the Minister elected not call any evidence himself, he did elicit some helpful information through cross-examination of other witnesses. The Minister did not, however, take a neutral stance or simply agree to abide the decision of the court. Instead, he sided with the defendant and made strong submissions seeking the dismissal of the plaintiff's claim. In these circumstances, as the successful litigant, the plaintiff is entitled to costs against both the defendant and the Minister. The position regarding the claim for costs against the present estate holder is, perhaps, not as straightforward. The effect of the death of the Noble who was the estate holder at the relevant time and the plaintiff's entitlement to claim costs against his successor is something that was not explored before me. If the plaintiff wishes to pursue his claim for costs under this head then he should file a memorandum.









NUKU'ALOFA: 8 MARCH 2007 CHIEF JUSTICE