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To'ofohe v Minister of Lands [2004] TOCA 12; CA 12 2003 (30 July 2004)

IN THE COURT OF APPEAL OF TONGA
LAND JURISDICTION

AC. NO. 12/2003

BETWEEN:

MATAIASI TO’OFOHE
Appellant

AND:

HON MINISTER OF LANDS
Respondent

Coram: Ford ACJ
Burchett J
Salmon J

Counsel: Ms Tonga for the Appellant
Mr Kefu for the Respondent

Date of hearing: 29 July 2004
Date of judgment: 30 July 2004

JUDGMENT OF THE COURT

[1] Although it was not entirely clear from the pleadings, the appellant's cause of action is based on breach of contract. His late father, Fotu, was the holder of a tax allotment in Ha'apai. The allotment, comprising a total area of 3a 0r 32p, was situated adjacent to a Government quarry. The quarry had intruded onto Fotu's land and the Government had ended up paying compensation for the material removed. In 1985 the Minister of Lands, Hon Tuita, was anxious to obtain the use of more of Fotu's allotment as a source of coral rock for completion of the construction of the Ha'apai airport runway. Fotu at that time was living in New Zealand. The Minister requested him to surrender a total of 2r 1.4p which included the area of 1r 31.6p affected by the unlawful intrusion.

[2] It is the appellant's case that as a result of the approach from the Minister, an agreement was reached between Fotu and the appellant on the one part and the Minister of Lands on the other whereby Fotu, with the consent of the plaintiff, surrendered 2r 1.4p of his tax allotment on the assurance from the Minister that the plaintiff, as Fotu's heir, would be given in exchange an 8 acre allotment in Tongatapu.

[3] In his letter of surrender dated 13 August 1985 addressed to the Minister, Fotu said:

"I have received your decision which was conveyed by the clerk. Therefore I do consent for the surrender of 2 roods 1.4 perches from portion of my tax allotment which is known as Nu'u'anga situated at Pangai Ha'apai, for the work.

Therefore, authority has been given to Masao Paasi to finalise with you an allotment in Tongatapu for farming."

[4] Masao Paasi was Fotu's half brother. He was also a licensed law practitioner. The Privy Council approved the application for surrender on 8 October 1985. The following day the plaintiff swore an heir's affidavit to Fotu's allotment. We cannot tell from the documentation before us how or when the process was put in place but counsel are in agreement that the surrendered land is now in the Government's name.