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

Appeal No. 28/88
Case No. 305/93

BETWEEN

1. TEVITA MANU FASI
2. NAU FASI
Appellants

-V-

1. SIOSIA FIFITA
2. FUNAKI FAIVA
MINISTER OF LANDS
Respondents

Coram
Burchett J., Tompkins J., Beaumont J.

Counsel:
Siosifa Tu’utafaiva for Appellant.
Sione ‘Etika for second and third Respondents.
‘Aminiasi Kefu for third Respondent

Date of hearing: 11 & 20 July 2000
Date of Judgment: 21 July 2000

JUDGMENT OF THE COURT

This appeal concerns a town allotment being part of the hereditary estate of the Crown known as "Napulo" in Fatafehi Road, Kolofo'ou. The appellants commenced proceedings seeking orders in their favour in respect of part of the allotment. Those proceedings were dismissed by Lewis C.J for want of prosecution by orders made on 6 February 1998. On 30th June, 2000 Ward C.J dismissed an application by the appellants to appeal out of time from the judgment of Lewis CJ. He also ordered that an eviction order made on 6th April 1999 be executed.

The appellants have appealed against each of these decisions.

Factual background

The allotment was originally registered in the name of Sione Faiva. He died in 1961. His daughter Nau married Semisi Fasi. They are the parents of the appellant Tevita Manu Fasi. That appellant claims that his mother Nau was told by her father that she was to remain on the allotment to care for her mother and him, and that in return for the care she would be given a portion of the allotment for herself and her children. The respondents deny that promise.

When Sione died in 1961, the allotment passed to his wife Lu'ulofia who held it under a widow's interest until she died on 19th June 1981. Upon her death, there being no heirs claim, the respondent Funaki Faiva applied for and obtained registration as the holder of the allotment.

In 1987 the appellant Tevita Fasi and the respondent Funaki Faiva entered into an agreement concerning the allotment. By letter dated 14th August, 1987 Funaki Faiva surrendered his interest in part of the allotment to the appellant Tevita Fasi. The letter recites that the surrender was to recognise the fact that Funaki's aunt Nau, her husband and their children had lived on and cared for the allotment for 43 years.

The appellant Tevita took the letter to the Minister. He was informed that further approvals were required. He obtained one. The appellant was given an assurance that the matter would be placed before Cabinet. No Cabinet. decision was ever taken.

The appellant produced a letter signed by the respondent Funaki Faiva dated 10th October, 1992 addressed to the Minister of Lands cancelling the surrender of part of the allotment to Manoa Fafita . The third respondent acknowledged that the letter was received. The respondent Funaki Faiva denies that this letter bears his signature, which amounts to an assertion that the letter was a forgery.

On 6th January, 1993 Cabinet approved an exchange of allotments between the respondent Faiva and the respondent Fifita, as a result of which the allotment with which these proceedings are concerned is now registered in the name of the latter.

The judgment of Lewis J

The original statement of claim in these proceedings was filed on 22nd April, 1993. We were informed from the bar that there was a hearing before Lewis.J (as he then was) on 13th March, 1995 at which one of the appellants and a witness gave evidence. We are not aware of the nature or purpose of that hearing. We were also informed that the matter was adjourned to 22nd May, 1995 when the appellants were given leave to file an amended statement of claim, which was done on 28th May, 1995.

The respondents applied to strike out the statement of claim for want of prosecution. The parties filed an agreed statement of facts. According to the judgment of Lewis CJ of 19th March 1996, there was a hearing on 1st March, 1996 at which counsel presented written submissions and addressed argument to the court.

In his judgment the judge sets out the facts in some detail. In their claim the appellants were seeking orders for the exchange of the allotment between the respondent Faiva and the respondent Fifta to be set aside and that the third respondent submit to Cabinet the application of the respondent Faiva of 14th August, 1987 to surrender the allotment and allow the appellant Fasi to apply for it. 

After considering some of the legal issues before him, the Judge said that the case cried out for a more just result. Having given his opinion that the appellants must inevitably fail, he went on to note his concern that counsel presented the court with agreed facts. but there was a major issue in dispute that can only be resolved by hearing witnesses concerning the wishes and the promise Nau’s father is said to have given her. After referring to the respondent Funaki Faiva's application for surrender in favour of one of the appellants and then withdrawing it, he observed that there was much to be explained about Funaki's behaviour. he went on to say:

"I am of the opinion that this matter cannot be properly determined as to the real issues given the state of the so-called agreed facts, however if the facts were to be determined at a full hearing the plaintiff must fail for the reasons I have given."

He made no final orders at that stage. Following a hearing on 6th February 1998 at which only counsel for the first respondent was present, he made orders that the action be struck out for want of prosecution, costs against the appellants, that the appellants vacate the town allotment within 28 days, and that the exchange of allotments between the respondents Funaki Faiva and Siosia Fifita be confirmed.

Conclusion

It is our conclusion that the procedure followed and the decisions reached following the hearing on 8th March, 1996 are unsatisfactory. The result is that the principal issue brought before the court by these proceedings have never been the subject of a full hearing at which the necessary witnesses have given their evidence about the events that occurred. With respect to the Judge, it was not appropriate to attempt to determine the validity of the appellants' claim on what was obviously an incomplete and unsatisfactory statement of agreed facts. This is all the more so when the letter of 10th October 1992 from the respondent Funaki Faiva to the Minister of Lands cancelling the surrender of his allotment to Moana Fifita is claimed to have been a forgery.

We agree with the Judge that the major issue in the case can only be resolved after the evidence about the wishes and the promise Nau's father is said to have given her. We do not agree that if all the facts were ascertained after a full hearing, the appellant's action must fail. The success or failure of the appellant's claim may well depend on how those facts emerge at the hearing.

The appellants or members of their family have been in possession of part of this allotment now for over 50 years. To deprive them of the opportunity to test in court their claim to be entitled to remain in occupation, whether as the result of an estoppel, an equity in their favour, an express or implied licence, or some other grounds, may well result in an injustice. We make these observations well aware that many of the problems in this case have been due to inactivity or inappropriate actions by them or the counsel then acting for them.

Mr Tu'utafaiva advanced other grounds in support of the appeal of a procedural nature. In view of the conclusions we have reached, it is unnecessary to deal with these further grounds.

The result

The application for leave to appeal out of time is allowed. The appeal is allowed,. The orders made by Lewis CJ on 6th February, 1998 are quashed. The proceedings are remitted to the Supreme Court for the hearing of the substantive action.

It follows from this that the appeal against the orders made by Ward C.J. on 30th June, 1999 declining the appellants' application for leave to appeal out of time is allowed, and the eviction orders that had been made are quashed.

The appellants are entitled to their costs on this appeal against the first and second respondents. We make no order for costs in respect of the appearance on behalf of the third respondent.

Burchett J, Tompkins J, Beaumont J.