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

AC 9 of 2012
[LA 25 of 2010]

BETWEEN:

SEINI PAEPAE FINAU
Appellant

AND:

MINISTER OF LANDS
First Respondent

SIONE M. HEIMULI
Second Respondent

Coram : Salmon J 
Moore J 
Handley J

Counsel : Mr. Niu for the Appellant 
Mr. Kefu (Solicitor General) for the First Respondent
Mrs. Vaihu for the Second Respondent

Date of hearing : 2 October 2012

Date of judgment : 12 October 2012

JUDGMENT OF THE COURT

[1] This is an appeal by Seini Finau from the judgment of the Land Court of 22 June 2012 dismissing her claim seeking, amongst other things, an order cancelling the grant of a town allotment in 2007 to the second respondent, Sione Heimuli. Many of the facts canvassed by the Land Court in its reasons for judgment, and particularly those concerning the family tree of the appellant and the second respondent, are not relevant to the issues raised in the appeal.

[2] It is sufficient to note a limited number of uncontentious facts. Before the grant in dispute and other earlier dealings with the allotment favouring the second respondent, the most recent holder of the allotment, a widow holding the allotment under s 80 of The Land Act CAP 132 ("the Act"), died in 1994. There was no heir. It was common ground in this appeal that the allotment thereafter reverted to the Crown. In purported exercise of the powers under s 88, the Minister of Lands made the grant in 2007 to the second respondent. In so doing, the Minister heard from interested parties including the appellant about what should be done in relation to the allotment. The grant was preceded by an application lodged by the second respondent using Form 9, designed for use in an application under s 43 of the Act. 

[3] The appellant had been living on the land in 1994. Thereafter, her connection with the land was affected by orders of the Land Court in earlier litigation involving the same parties. The connection included an interest the appellant had in a house and a concrete water tank erected on the allotment. For reasons which will emerge shortly, it is unnecessary to explore the nature of that connection and, in any event, no detailed findings were made by the Land Court concerning that connection.

[4] The arguments advanced by the appellant in this appeal, were similar to the arguments advanced by her before the Land Court, which it rejected. It is unnecessary to summarise the reasons of the Land Court which broadly accord with our reasons for rejecting the appellant's arguments in this appeal.

[5] It is convenient to set out, at this point, several sections of the Act. Section 43 provides:

"Tongan subject may apply for allotment

(1) Every male Tongan subject by birth of 16 years of age not being in possession of a tax or town allotment shall be entitled to the grant of a tax or town allotment or if in possession of neither to the grant of a tax and town allotment.

(2) The grant shall be subject to the provisions of this Act and shall be made in accordance with the following rules-

(a) the applicant shall make an application on the prescribed form to the Minister;

(b) the applicant shall produce for the inspection of the Minister his birth certificate or some other proof of the date of his birth;

(c) the applicant shall pay the prescribed fees."

 Section 50 provides:

"Rules for taking land to allotments

Land for allotments shall be taken from the hereditary estates in accordance with the following rules —

(a) an applicant for an allotment lawfully resident in an hereditary estate shall have his allotments out of land available for allotments in that estate;

(b) where there is no land available in the estate in which the applicant is resident, then the allotment shall be taken out of some other estate held by the noble or matapule in one of whose estates the applicant is resident;

(c) if no land is available in any hereditary estate held by the noble or matapule in one of whose estates the applicant is resident then the allotment shall be taken out of the hereditary estate of any other noble who is willing to provide such allotment;

(d) if no land is available under rule (c) then the applicant may have his allotment from Crown Land;

(e) an applicant for an allotment to be granted out of Crown Land shall have his tax and town allotments from such particular portion of Crown Land as the Minister may decide:

Provided that an applicant already resident on Crown Land shall where possible be granted the allotments from the particular area of Crown Land in which the applicant is resident." 

 Both these sections are in Division 1, Grant of Allotments, of Part IV, Tax and Town Allotments, of the Act.

[6] Section 88, which is in Division VII, Devolution of Allotments, of Part IV, provides:

"Where any tax or town allotment shall revert to the Crown under the preceding provisions of this Division, such allotment unless required for Government purposes shall be granted out by the Minister in accordance with such regulations as may be made under this Act." 

 Reference should also be made to s 22 which provides:

"Power to make regulations

(1) The King with the consent of the Privy Council may, from time to time, make regulations providing for all purposes whether general or to meet particular cases that may be convenient for the administration of this Act or that may be necessary or expedient to carry out the objects and purposes of this Act and where there may be in this Act no provision or no sufficient provision in respect of any matter or thing necessary or expedient to give effect to this Act, providing for or supplying such omission or insufficiency and without prejudice to the foregoing powers, providing for all or any of the matters following, that is to say—

(a) prescribing and defining the manner of doing or performing any act or thing under or for the purposes of this Act, and the time when or within which it shall be done or performed;

(b) prescribing forms of registers, books, documents, instruments and writings, and the conditions, stipulations, reservations and exceptions that shall be inserted or that shall be implied in grants, leases, permits, and other instruments;

(c) defining the duties of officers;

(d) regulating the procedure in applications to the Minister of Lands;

(e) regulating the cutting, getting, and removal of timber, sand, stone, metals, and material on and from Crown Land or any holding;

(f) regulating commons and public reserves in cases not otherwise provided by law.

(2) The regulations may impose fees in respect of any inspection, survey, lease, licence, registration, certificate, permit or other matter granted or made by any officer or other person under this Act; and in respect of any application made to any officer or other person under this Act:

Provided that the fees set out in Schedule IV shall be the fees imposed until the same have been varied or revoked in pursuance of the authority given by this section.

(3) The regulations may impose royalties to be paid to the Crown in respect of timber, stone, sand, and metals or other material cut, got and removed pursuant to any permits, issued under this Act.

(4) Any person who offends against any regulation shall be liable to a penalty not exceeding $100."

[7] The appellant's first argument in this appeal is based on the fact that no regulations have been made as contemplated in the concluding words of s 88. The gist of the argument is that in the absence of regulations, the power to grant out an allotment cannot be exercised under that section and any grant has to be made under s 50.

[8] It happens from time to time that legislation confers power on a person or body and expressly provides for the making of regulations regulating or dealing with the exercise of the power, but no regulations are made. This case is an example. The legal issue which then arises is whether the making of regulations is an essential condition for the exercise of the power. 

[9] A commonly cited case concerning this issue is Browne v Commissioner for Railways (1935) 36 SR (NSW) 21. A helpful discussion of this authority is found in the judgment of Burchett J in Colpitts v Australian Telecommunications Commission (1996) 70 ALR 554 at 566. In that latter case a statutory authority had a power to decide to compulsory retire an employee if, in its view, the employee was inefficient, incompetent or unable to discharge the duties of the position. The section conferring the power also provided that the regulations "shall make provision for and in relation to the review of a decision". There were no regulations making provision for a review of a decision to compulsorily retire an employee. Burchett J decided that the provision of a right of review "must be regarded, upon the proper construction of the section, as an essential condition of action under it". Accordingly the statutory authority had no lawful right to retire the employee who had challenged the statutory authority's decision in the proceedings.

[10] The effect of regulations not being made in these situations is a question of statutory construction of the provision conferring power that also contemplates the making of regulations concerning its exercise. Did Parliament intend that the power conferred by the statutory provision could only be exercised if regulations had been made concerning or relating to the exercise of the power? In the present case, it is difficult to discern such an intention. The section speaks of "such regulations as may be made". The use of the formulation "such…as may…" suggests the possibility that regulations might be made but equally contemplates the possibility they might not. The regulation making power in s22 is expressed in extremely wide terms. However there is nothing about the nature of the power conferred by s 88 which suggests that regulations would be necessary in order to perfect the description of the power or further identify the nature of the power. Nor would regulations be necessary to identify procedural steps to be taken before or following the power's exercise. The power is completely described, namely to grant out the allotment and there is no particular reason why it is necessary to have specified procedures as long as common law requirements (for example, providing interested parties with an opportunity to be heard) are met. The first argument of the appellant should be rejected.

[11] The second argument involves importing into s 88 a requirement that the power to grant an allotment which has reverted to the Crown cannot be exercised if the allotment is not "available" in the way that concept is embodied in s 50. This argument, in turn, relies on what was said by the Court of Appeal in Tafa v Viau [2006] Tonga LR 287. In that matter there had been a determination at trial that land granted by the Minister under s 50 had been lawfully occupied by two of the parties to the proceedings who were residing in a substantial house they had built on the land. A finding of fact was made at trial that the land was not available for grant. The Land Court decided that as this fact had not been considered by the Minister, the decision to grant the land to another party was vitiated.

[12] In the Court of Appeal, the issue was centrally whether the Minister had failed to take reasonable steps to acquaint himself with relevant information before making the decision to grant the allotment to the appellant. The Court of Appeal accepted that the Minister had not taken such steps and indicated (at [14]) that in the result "a most material factor, the occupation of the land by the respondents together with the erection of a house on it, was not taken into account". Importantly, the Court of Appeal did not endorse the ultimate finding at trial that because of these circumstances, the land was not "available" for grant. Indeed the Court of Appeal noted in its concluding paragraph that the dismissal of the appeal "leaves the ultimate decision upon the question of the issue of a grant to the Minister". If the Court of Appeal had accepted the finding that the land was not "available", it is difficult to see how the Minister could, as the Court of Appeal contemplated, reconsider the decision to grant the allotment.

[13] It is true that the Court of Appeal said (at [11]) that "the scheme, as a whole, seems to us to make availability an essential requirement before a grant can be made." However that observation followed immediately after the terms of ss 43 and 50 were set out. While there is a certain ambiguity arising from the use of the word "scheme", that sentence cannot be taken to be a declaration that any provision in the Act, other than possibly s 50, which authorises the making of a grant is subject to a condition precedent that the land is available in whatever sense that word is used in s 50. 

[14] That said, almost self evidently, something cannot be granted (or otherwise dealt with) unless it is available. But in this sense, the word "available" is used in its ordinary meaning and does not have a particular legal meaning. In our opinion, Tafa v Viau is not authority for the cumulative propositions that the statutory requirement in s 50 that land be available is, as a matter of law, a precondition to grant and that lawful occupation by someone other than the potential grantee, renders the land unavailable. The case only establishes an element of the first proposition, namely that the Minister must consider whether the land is available before making a grant. A failure to do so vitiates the grant.

[15] Returning to s 88, there is nothing in the language or context of the section, or having regard to the Act as a whole, which justifies the implication of a precondition for grant under that section that the land is "available" in the sense in which the word is used in s 50. As just noted, having regard to the ordinary meaning of the word "available", the land could not be granted under s 88 unless it was available. However, under s 88, land is available if it has reverted to the Crown and there is no existing heir who might claim the land and, additionally, the land is not required for Government purposes. Given these express preconditions to the making of a grant under s 88 there is no warrant, in our opinion, to imply a precondition arguably arising under another section, namely s 50. Accordingly the second argument of the appellant must also be rejected.

[16] In these reasons we have not sought to determine what "available" means for the purposes of s 50 and we note there may have been an expectation, having regard to the parties' submissions, that we might resolve this question. However it is not an issue that arises in this appeal. Also, there is a real question which may have to be determined in another case at a later time. It is whether the Act entrusts to the Minister the determination of the question of whether land is "available" as a matter of fact for the purposes of s 50 having regard to the circumstances of any particular case, or whether "available" has a legal meaning to be determined by a Court in any challenge to a Minister's decision which would be of general application or to be determined and applied by a Court on a case by case basis.

[17] The appeal is dismissed with costs.

Salmon J

Moore J

Handley J