Home | Databases | WorldLII | Search | Feedback Court of Appeal of Tonga

Lopeti v Lopeti [2018] TOCA 8; AC 15 of 2017 (26 March 2018)

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

AC 15 of 2017

[LA 12 of 2016]

BETWEEN : LUSE LOPETI

- Appellant

AND : 1. TAVITE KAVAFOLAU LOPETI

2. YOHANNY LOPETI

3. MINISTER OF LANDS
- Respondents

Coram : Handley J

Blanchard J

Hansen J

Counsel : Mr. S. Tu’utafaiva for the Appellant

Mr. L. M. Niu SC for the First & Second Respondents

Mr. ‘A. Kefu SC for the Third Respondent

Date of Hearing : 20 March 2018

Date of Judgment : 26 March 2018

JUDGMENT OF THE COURT

[1] This appeal from a judgment of Lord President Paulsen in the Land Court concerns the validity of a lease for 50 years from 13 January 2016 in favour of the appellant, Luse Lopeti, now registered under No. 8778 against part of a town allotment called Felemei. The holder of the allotment and lessor was at the time of that registration shown in the registry records as Yohanny Lopeti. However, the Land Court has found that registration to have been made in error and has declared the first respondent, Tavite Lopeti, to be the lawful holder. There is no appeal against that decision. This appeal therefore relates only to the validity of the lease. The parties to the appeal are sister and brother.

[2] Tavite’s father, ‘Alekisio, succeeded to Felemei on the death of his own father, Tavite’s grandfather, in 1984 but ‘Alekisio was never registered as the holder. He died in 2007. Tavite duly lodged his heir’s affidavit in 2008. But because of some muddlement in the registry office, which misunderstood the legal position, and which the Lord President’s judgment describes and has set to rest, Tavite’s son Yohanny was registered as the holder and lessor. Because of the narrowed scope of the appeal we need not go into how that incorrect registration of Yohanny occurred.

[3] We do however have to go back to the genesis of the lease to Luse which was in 1996. In that year ‘Alekisio, despite being himself un-registered, agreed to lease part of Felemei to Luse and made an application to lease. On 16 October 1996 Cabinet consented to a 50 year lease but no lease document was prepared during ‘Alekisio’s lifetime.