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Fatafehi v Afemeimo'unga [2021] TOCA 19; AC 10 of 2021 (1 October 2021)

IN THE COURT OF APPEAL OF TONGA
LAND JURISDICTION

AC 10 of 2021
[LA 4 of 2020]

BETWEEN:

TALI-KI-HA’AMOA FATAFEHI Appellant

-and-

[1] SIONE AFEMEIMO’UNGA
[2] MELE’ANA AFEMEIMO’UNGA

[3] LORD LAVAKA
[4] MINISTER OF LANDS

Respondents

JUDGMENT OF THE COURT

Court: Whitten P

Hansen J Randerson J White J

Counsel: Mr S. Fonua for the Appellant

Mr V. Latu for the First and Second Respondents No appearance for the Third Respondent

Mr S. Sisifa S.G. for the Fourth Respondent

Hearing: 22 September 2021

Judgment: 1 October 2021

Introduction

1. On 13 September 2019, the Appellant became the registered holder of a town allotment at Pea in the estate of the Third Respondent (“the allotment”). The First and Second Respondents (“Mele’ana and Sione”) have lived on the allotment for more than 30 years and have raised their children there. In March 2020, the Appellant brought proceedings in the Land Court for their eviction from the allotment. Mele’ana and Sione counterclaimed for a declaration that the Appellant's registration was unlawful and for an order directing the Minister of Lands (“the Minister”) to cancel the registration. On 19 February 2021, Niu J dismissed the Appellant’s claim and found that his registration was unlawful.¹ The Appellant appeals that decision.
   

¹ Fatafehi v Afemeimo'unga [2021] TOLC 3.

Background

2. In the 1950’s, a man by the name of Sioeli Leone was living on the allotment. He moved and allowed Tuitu’u and Heilala Folau to occupy the allotment. They built a wooden

house and lived there with their six children. Their eldest son, Tali Snr, moved to the United States for work.

3. In 1992, Tali Snr financed works to the house. The was some issue at trial as to whether those works involved an extension to the existing house or its demolition and reconstruction of a substantial concrete block dwelling in its place. The trial judge found the latter and that the work was undertaken with the assistance of Tuitu’u and Heilala’s other children at the time. Once completed, Tu’itu’u and Heilala and their eldest daughter, Fane and her children, the Appellant (“Tali Jnr”), Puikala and Kaufusi, and their two sons, Lisiate and Leone occupied the house. That same year, Fane and her husband and children moved to another allotment.
4. Mele’ana is the youngest daughter of Tuitu’u and Heilala. She was born on the allotment. When she married Sione in 1992, they moved from Havelu to the allotment and the new house to look after Tuitu’u and Heilala.
5. That same year, Tu’itu’u passed away. In the years that followed, Lisiate and Leone moved away, leaving only Mele’ana and Sione and their children living with Heilala on the allotment.
6. In 2007, the Appellant married and continued to live with his wife on a nearby allotment with his parents and their children.
7. In the same year, during his return from the U.S., Heilala told Tali Snr that she wanted the Appellant to have the allotment. Tali Snr agreed and returned to the U.S.
8. In 2008, Heilala approached the representative of the estate holder and asked for the allotment to be registered to the Appellant. The representative later attended the allotment with an application form which the Appellant signed. The judge accepted, as a fact, that on that occasion, Mele’ana stated that she was not happy with the Appellant having the land because the allotment was her home. Heilala told her to be quiet because the matter had nothing to do with her. The representative advised the estate holder that Heilala and her family were living on the allotment, although not legally; that the Appellant was one of Heilala’s grandchildren; and, that they all agreed with the Appellant’s application. There was no evidence that Mele’ana’s disagreement was ever communicated to the estate holder.
9. On 10 February 2010, the estate holder signed the application thereby giving his consent to the grant in favour of the Appellant and declaring that there was no impediment to the grant.
10. In 2012, Heilala passed away.
11. It was not until 4 June 2015 that the Appellant’s application was submitted to the Ministry of Lands with a copy of the representative’s advice to the estate holder.
12. On 20 June 2016, the Appellant wrote to the Minister and stated, among other things, that there had been agreement about his application between Heilala and the rest of the children, but that after she died, disagreements had arisen, particularly with his ‘mother’s

younger sister’ (being Mele’ana) .

13. On 29 November 2016, the Appellant’s lawyer wrote to Mele’ana and Sione demanding that they vacate the allotment.
14. On 30 November 2016, Tali Snr wrote to the Minister confirming his wish that Mele’ana and Sione continue living in and maintaining ‘his’ allotment until he returned.
15. On 19 December 2016, a Ministry officer inspected the allotment. She then prepared a report in which she recorded, relevantly, that:
    • (a) the house had been built by Tali Folau (being Tali Snr), who lives in America, for his parents, Tuitu’u and Heilala, to live in; and
    • (b) they had since passed away and the Appellant’s younger sister was living there and maintaining the allotment with the permission of Tali Folau.

Details of the features and improvements to the allotment were also recorded on a sketch map together with a photograph of the substantial house.

16. On 17 July 2019, a different officer provided a brief to the Minister on the application. In it, she stated, relevantly, that:
    • (a) the allotment had been allocated to Tuitu’u but that he had passed away without applying for registration;
    • (b) Tuitu’u and Heilala wished to give the land to the Appellant since he is their grandson;
    • (c) that the allotment was occupied by Mele’ana (the Appellant’s aunt) “upon the permission of Tali since he travels very often to USA;” and
    • (d) Mele’ana had “been acknowledged about this application since the premises was built by Tuitu’u and his wife in intention to Tali” [sic].

The officer recommended that the application be approved.

17. On 29 July 2019, the Minister approved the application.
18. On 2 August 2019, the Secretary of Lands informed Mele’ana and Sione that the Minister had approved the grant of the allotment on which they were living to the Appellant and required them to vacate the allotment.
19. On 13 September 2019, a deed of grant in favour of the Appellant was registered.

The judgment below

20. The learned trial judge found, in summary, that:
    • (a) the house on the allotment belonged to Tali Snr;
    • (b) therefore, the statement in the brief to the Minister that the house had been built by Tuitu’u and Heilala with the intention that it would pass to the Appellant was wrong;

• (c) as the estate holder had never required them (or Tuitu’u and Heilala before them) to vacate the allotment, Mele’ana and Sione had been lawfully residing on the allotment since 1992;
• (d) the estate holder was never informed that Mele’ana was ‘not happy’ with the proposed grant. Therefore, the advice to the estate holder by his representative that all the children and grandchildren had agreed that the allotment be granted to the Appellant was untrue and that only Heilala, Fane and the Appellant had so agreed;
• (e) as a consequence, the declaration by the estate holder that there was no impediment to prejudice the grant was in error because Mele’ana and Sione lawfully occupied the allotment and they were not agreeable to it being granted to the Appellant;
• (f) the Minister was aware that Mele’ana and Sione were in lawful occupation of the allotment and that they were not agreeable to it being granted to the Appellant, and that if he was not aware that they had been living there for then 29 years, that was due to his officers failing to inform him;
• (g) as such, Mele’ana and Sione were persons who could be adversely affected by a decision of the Minister to grant the allotment on which they were living to another person, and therefore they ought to have been afforded an opportunity of being heard by the Minister before he decided the application;
• (h) the inspection by the first officer in 2016 did not constitute an opportunity to be heard by the Minister;
• (i) the brief by the second officer in 2019 to the Minister misrepresented that:
  • (i) the house had been built by Tuitu’u and Heilala, whereas it was built by Tali Snr;
  • (ii) the house was built and intended for the Appellant, whereas it was built by Tali Snr for the parents, Tuitu’u and Heilala, to live in; and
  • (iii) ‘Tali’, the applicant, travelled often to the U.S. and had left the care of the house to Mele’ana, who was agreeable to the grant, because there was no evidence that the Appellant (Tali Jnr) travelled often, if at all, to the U.S. or that he left the house in the care of Mele’ana or that Mele’ana ever agreed to the grant;
  • (j) the brief therefore was not a fair representation of Mele’ana and Sione’s side of the story; and
  • (k) accordingly, the grant was made in breach of natural justice and was therefore unlawful.

Appellant’s submissions

21. On this appeal, Mr Fonua, submitted that the trial judge erred for the following reasons, in summary:

• (a) Tuitu’u and Heilala built the original house on the allotment with the intention that it would eventually belong to the Appellant. When asked for a reference to the evidence of that intention, Mr Fonua referred to the brief to the Minister.² When asked for a reference to the evidence at trial as to the source of the statements recorded by the second Ministry officer in the relevant section of the brief, Mr Fonua explained that there was no such evidence.
• (b) The written submission³ that the evidence suggested that, in 2008, everybody in the family agreed with Heilala’s wish that the allotment be granted to the Appellant, was modified by Mr Fonua in oral submissions to effect that there was no evidence that any other family member disagreed with Heilala’s wish. That, of course, conflicts with the judge’s finding that Mele’ana expressed her discontent at the time the estate holder’s representative brought the application for the Appellant to sign. We note in that regard, that during her evidence at trial, Mele’ana herself denied having said anything at that time to her mother to the effect that she was unhappy with the grant in favour of the Appellant or that "women should own land".⁴
• (c) The written submission⁵

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