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Minister of Lands v Finau [2001] TOCA 8; CA 13 & 13A 2000 (27 July 2001)

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

Appeal 13/2000
Appeal 13A/2000
Case No. L.228/99

BETWEEN

MINISTER OF LANDS
Appellant

-v-

TEVITA ‘AMELEKI aka TEFIATA ‘AMELEKI FINAU
Respondent

AND

HENELE FINAU
Appellant

-v-

TEVITA ‘AMELEKE FINAU
Respondent

Counsel:
‘Aminiasi Kefu for appellant the Minister of Lands
Lesina Tonga for appellant Henele Nai
Mrs Vaihu for respondent

Date of Hearing: 24 July 2001
Date of Judgment: 27 July 2001

JUDGMENT OF THE COURT DELIVERED BY TOMPKINS J

[11 These two appeals concern a town allotment in Ma'ufanga being lot 1 on plan 109 (the allotment). The action was heard by Finnigan J, sitting with an assessor Honourable Lasike. By a judgment issued on 29 May 2000 Finnigan J directed that the registration of the appellant Henele Nai to the allotment be set aside, that the first appellant the Minister of Lands cancel the deed of grant issued on 23 September 1994 in the name of the appellant Henele Nai, and that the Minister re-issue the deed of grant issued on 14 September 1994 in the name of the respondent Tevita Finau. The first and second appellants have appealed against that judgment.

[2] At the commencement of the hearing, Mr Kefu for the Minister of Lands sought and was granted leave to withdraw the, appeal by the Minister. It is accordingly dismissed.

The sequence of events

[3] The events that occurred are set out in considerable detail in the judgment under appeal. The following is an outline of the events as found by the judge, relevant to the issues raised on the appeal.

[4] In or about 1971 land was required by the Government for a Police College at Kolofo'ou. Those who were living on that land were moved on to land in Ma'ufanga. The estate holder of that land was and is Hon Fakafanua. A new village came into being at Houmakelikao. The first people to be given the allotment were Sione and Valamotu Vi. They did not register as the land holders, but were known to the estate holder, who accepted them as the occupiers.

[5] The respondent was another of those who moved to Houmakelikao. Valamotu Vi, who with her husband Sione had never lived on the allotment, agreed to the respondent occupying it. That was in 1971. The respondent has lived on the allotment ever since.

[6] When Valamotu Vi went to Australia in 1.988 she authorised her nephew Lupeti to look after the allotment. Later, as the result of discussions within the Vi family, it was agreed that the appellant Henele Nai should have the allotment. Pita Vi, the son of Valamotu Vi, signed a letter as heir which was taken to the estate holder who signed the consent on their application and said the land would be registered as Henele Nai's.

[7] In the intervening time the judge found that the respondent had carried out his village obligations and in particular had been a frequent visitor to the home of the estate holder Hon Fakafanua. The respondent is a relative of the estate holder's wife. The respondent said that he visited the estate holder's home. on several occasions for the purpose of obtaining registered title to the allotment. He took with him the application form which required the signature of the estate holder. The estate holder did not sign the form. Instead he told the respondent each time to stay on the land because it was he who was taking care of it. On one occasion the estate holder told the respondent to go to the town officer, and that whoever was named by the town officer would be the person to whom the estate holder would give the allotment. The estate holder Hon Fakafanua said that he had no memory of any visits by the respondent, but the judge accepted the respondent's evidence about these visits and what the respondent was told.

[8] The respondent went to the town officer with the form which the town officer signed. The town officer and the respondent went about three times to see Hon Fakafanua. The respondent came away with the form unsigned but told the town officer that Hon Fakafanua had again advised him to return and stay on the allotment.

[9] The respondent took the form to the Minister. He told the Minister what had occurred. The Minister said that he would see Hon Fakafanua. Later the respondent was told the Minister had approved the application for registration. On 14 September 1994 a deed of grant issued to the respondent.

[10] Lupeti Vi and the appellant Henele Nai then lodged their application form, which the estate holder had signed on the same day that the respondent's deed of grant was issued. The Minister accepted their application. He cancelled the registration of the respondent and on 22 September 1994 issued a new deed of grant to the appellant Henele Nai.

[11] The judge made a further finding relating to the appellant. He comes from Fua'amotu which is on Tungi's estate. He lives there, on an allotment that belongs to his uncle. In 1994 he asked Hon ‘Ahome’e, the Tungi’s agent, whether there was an allotment available. However, the judge was not prepared to accept for the purpose of his decision that was so, because he was not satisfied that the appellant’s inquiry extended to the whole estate of Tungi.

The judge’s findings

[12] After a detailed review of the submissions and making further factual findings which we need not to detail, the judge gave three reasons for settings aside the registration in favour of the appellant Henele Nai.

[13] First, in applying the equity principle, he directed that the registration of the appellant be set aside in favour of registration of the respondent on the ground of an inequitable breach by the estate holder of his assurance to the respondent on the ground of an in equitable by the estate holder of his assurance to t he respondent.

[14] Secondly, he set it aside because of an inequitable breach of assurance by the Minister. Having been told by the respondent of his dealings with the estate holder, the Minister said that he would see Hon Fakafanua. The Minister registered the respondent and issued a deed of grant to him. These actions, the judge considered, included an assurance to t he respondent that the Minister had carried out his duties, and had lawfully granted the allotment to him.