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Court of Appeal of Tonga |
IN THE COURT OF APPEAL OF TONGA
LAND JURISDICTION
NUKU’ALOFA REGISTRY
AC 31 of 2024
[LA 07 of 2024]
BETWEEN
PAFILIO TANGITAU
Appellant
AND
MINISTER OF LANDS
First Respondent
AND
[1] ADRIAN MANARANGI
[2] EMALUISA MANARANGI
Second Respondents
Hearing:
9 May 2025
Court:
Randerson, Harrison and Morrison JJ
Counsel:
‘Aunofo Fifita-‘Aholelei, for Appellant
Sione Sisifa SC Solicitor-General, for Respondent
Judgment:
16 May 2025
JUDGMENT OF THE COURT
Background
[1] The appellant is currently engaged in legal proceedings with the second respondents[1] over the correct boundaries of a lease on Vava’u. The second respondents allege that the appellant has built a 30m long corrugated fence that encroaches 8m into their lease.
[2] The appellant sought to join the first respondent[2] as a third party to the proceedings. In essence the appellant alleged that the Minister made representations or promises that affect the land in dispute, or failed to make adequate inquiries when granting a lease on the adjoining land to Moorings Ltd and again when approving the transfer of the lease to the Manarangis. The third party application was granted but the Minister then brought a strike out application that resulted in Cooper J dismissing the third party proceedings. That decision is now challenged in this appeal, principally on the basis that the third party claim was barred by the ten-year limitation period in s 170 of the Land Act.
The appellant’s third party case
[3] The appellant’s case against the third party is put thus:[3]
(a) upon his application in 1999 for lease No. 6351, and upon its approval, surveyors for the Minister (lead by a Mr Prescott) “pointed out the boundaries ... which included survey marks numbers V169 and V171”;[4]
(b) in 2021 trespassers started to enter his land through the boundary with the Manarangis’ lease;[5]
(c) he got a surveyor from the Minister to ascertain the boundaries, and that surveyor “reaffirmed the boundary”;[6]
(d) in May 2021 he built a fence at the original boundary, at a cost of about $6,000; the effect was to deny access by vehicle from the Manarangis’ lease;
(e) he was encouraged or directed by the former Minister of Lands, to reclaim the area (about 35m long and 8m wide) and develop it; he did so with trucks of rocks, at a cost of $31,200;
(f) in August 2022, the appellant got a letter from the Governor of Vava’u, advising him to remove the fence because it was trespassing on Moorings Ltd’s land;[7]
(g) the Minister failed to give due diligence and failed to inspect the land before granting the lease to the Manarangis’;[8]
(h) the Minister, by his officers, misrepresented the boundary to the appellant, leading him to believe that his western boundary started from survey marks V169 and V171; the appellant relied on those misrepresentations to his detriment;
(i) the Minister’s representative encouraged the appellant to reclaim the disputed land; the appellant acted on that representation by reclaiming and developing the disputed land;[9]
(j) the appellant has “had the undisputed boundary of his lease from its grant in 1999”, and the Minister’s actions in granting the lease to the Manarangis unlawfully disregarded those rights or interests;[10]
(k) the Minister failed to make proper enquiries before initially granting the lease in 2006 (to the predecessor in title to the Manarangis), or alternatively before transferring the lease to the Manarangis in 2023.
The findings in the Court below
[4] On 1 October 2024, the learned primary judge dealt with the application to strike out the Third Party Statement of Claim. His Honour’s Reasons set out some salient facts and the reasoning for striking out the proceeding.
[5] His Honour noted that:
(a) the Manarangis hold lease No. 7427, which comprises land that runs to the sea in Vava’u;
(b) the appellant owns lease 6351, immediately to the east; it was granted on 16 April 1999, for a term of 50 years;
(c) the fence at the centre of the principal proceedings is 4.5m inside the Manarangis’ land, and runs 35m, blocking off the whole of the western border;
(d) that the third party statement of claim accepts that the appellant has encroached on the Manarangis’ land; and
(e) on 19 August 2022 the appellant received a letter from the Acting Governor of Vava’u, instructing that the fence was within the Manarangis’ land and that it be removed.
- [6] His Honour then noted that the strike out argument contained three elements:
(a) the appellant’s lease 6351 never included the boundary in dispute, either in the lease application, survey plan or the deed of lease;
(b) the appellant’s western boundary stops at V169;
(c) any suggestion that the appellant was on notice in 2022 is contrary to law because lack of knowledge or mistake as to the existence of a cause of action are not grounds for postponing the commencement of the limitation period.[11]
- [7] His Honour noted that the appellant did not depose that he believed the fence was on his land, nor did he depose what he was told on that occasion, “nor if or how he consequently believed the fence was legitimately located within his own land”.[12] His Honour considered that was enough to mean his claim failed.
- [8] However, in the event that conclusion was wrong, his Honour dealt with the arguments submitted, and specifically the issue under s 170 of the Land Act.
- [9] His Honour concluded that the 10-year limitation period would not be postponed if, exercising reasonable diligence, a party ought to have been aware of his right of action. Authority was cited for that proposition.[13] His Honour held that the 10-year period ran from the date of the lease (16 April 1999) because:
(a) the lease registered to the appellant in 1999 stated the boundary clearly;
(b) the boundary had never changed; and
(c) pillar mark V169, that correctly identifies the western boundary, was known to the appellant.
- [10] The last point inadvertently referred to paragraph 4 of the appellant’s defence, when it meant paragraph 4 of the Third Party Statement of Claim:
“4. That, upon his application and approval of the leasehold land Number 6351 the [appellant] got Surveyors from [the Minister] led by Mr Ikani Prescott and they pointed out the boundaries of the [appellant’s] leasehold which included survey marks V169 and V171.”
The grounds of appeal
[11] The notice of appeal relies on a number of grounds, alleging that the learned primary judge erred:
(a) by failing to consider all the pleaded causes of action before striking out the whole claim;
(b) making the ruling in paragraph 19 of his Reasons;
(c) failing to consider the second cause of action pleaded in paragraph 20 of the statement of claim; and
(d) misapplied the limitation provisions.
The limitation period in the Land Act
[12] Section 170 of the Land Act relevantly provides:[14]
“No person shall bring in the Court any action but within 10 years after the time at which the right to bring such action shall have first accrued to some person through whom he claims, or if such right shall not have accrued to any person through whom he claims then within 10 years next after the time at which the right to bring such action shall have first accrued to the person bringing the same.
Appellant’s contention on appeal
[13] The appellant’s contentions have altered somewhat since the hearing before the learned primary judge. The appellant now accepts that any claim based on misrepresentations or actions in 1999 or 2006 is time barred.
[14] That means that the appellant is confined to the alleged causes of action arising in 2021 and 2022.
The 2021 cause of action
[15] The appellant contends that there was a misrepresentation by the Minister’s surveyors in 2021, and he relied upon that misrepresentation to his detriment by constructing the fence at a cost of $6,000.[15] On this argument time started to run when he built the fence in 2021.
[16] The appellant relies upon authorities[16] that are not material because they relate to proceedings to recover land, as explained in paragraph [18] below.
[17] In our view, there are considerable difficulties confronting this contended cause of action.
[18] First, the principles referred to depend upon the appellant having, as at 2021, “the right to the allotment”, or “the ... right to occupy the land”. The appellant did not have any such right. The contention fails to confront the undisputed facts:
(a) lease 6351 was granted to the appellant on 16 April 1999;
(b) it set out the lease boundaries, which did not include V169; the appellant’s boundary commences at V171;
(c) the lease issued in 1999 is the same lease now, with the same boundaries;
(d) marker V169 was never part of the appellant’s lease;
(e) the lease in 2006 was to “The Moorings Ltd”, for 50 years;
(f) the lease now held by the Manarangis is the Moorings Ltd lease; and
(g) nothing said about the lease boundaries in 1999 or 2006 can be relied upon to ground any such “right”.
- [19] Secondly, all that the appellant says about the surveyor in 2021, is that they were engaged to “ascertain the boundaries” and that they “reaffirmed the boundary”.[17] That is so vague and lacking in particularity that it could not constitute an actionable misrepresentation or be considered an unlawful act.
- [20] Thirdly, even if it could, it fails to confront the fact that the appellant had his lease since 1999 and must be taken to have known the boundaries set out in it. Ms Ahu Lelei, for the appellant, conceded as much before this Court. Marker V169 was not part of the lease and never has been. Indeed, the appellant accepts that he was not mistaken about the boundary from 1999 to at least 2006.
The 2022 cause of action
[21] This cause of action is alleged to “challenge [the Minister’s] lease grant to [the Manarangis], on the basis of the Minister’s encouragement to the Appellant to reclaim as much of the land and develop it”.[18] In other words, this cause of action attacks the grant of lease 7427 to the Manarangis.
[22] The basis is not a misrepresentation about the boundary at all. Instead, it depends on the Minister’s encouragement to reclaim as much of the land as possible.
[23] The argument is as follows:[19]
(a) the Minister encouraged the appellant to reclaim as much of the land and develop it;
(b) the appellant acted in reliance on this representation and invested a substantial amount of time and money in developing the land;
(c) the Minister’s decision in granting the area in dispute as part of the Manarangis’ lease “contradicted or was in breach of this representation or promise”;
(d) equity will recognise and enforce a promise made by a landholder to another person to go on and occupy land, particularly in circumstances where the occupant has acted in reliance of that promise;[20]
(e) the Minister “should be bound to the promise he had made and relied upon by the Appellant and is therefore estopped from now denying the rights of the Appellant to the disputed area”;
(f) the Minister’s decision to grant the lease to the Manarangis “contradicts that promise”;
(g) the cause of action arose in 2022 when the appellant received a letter requiring him to remove the fence, which was an act that interfered with and breached the promise.
- [24] There are serious difficulties confronting this alleged cause of action.
- [25] First, this claim is not articulated in the Third Party Statement of Claim. All that is pleaded concerning 2022 is the letter advising him to remove the fence.[21] There is no pleaded act by the Minister such as is now asserted in submissions. The absence of the claimed cause of action gives little confidence of its veracity.
- [26] Secondly, it is framed in argument as a representation or promise. Leaving aside the pleading point, there is no assertion that would qualify the “encouragement” as either. The argument proceeds on the implicit assumption that what the Minister did by the “encouragement” was to say that the reclaimed land would belong to the appellant rather than to the person on whose lease the land was. But there is nothing to make good the assumption.
- [27] Further, it is, in our view, unable to withstand the admitted fact that the appellant must be taken to have known his boundaries when his lease was granted in 1999. It also follows that he knew them at all times thereafter. The two leases were issued, first in 1999 to the appellant, after the land had been reclaimed,[22] then in 2006 to Moorings Ltd. The lease to the Manarangis is the same lease that was made to Moorings Ltd in 2006.[23] Each lease defined its boundaries. Each was the product of a survey to establish the precise boundaries. So much would been self-evident to the lessees, let alone the Minister.
- [28] Thirdly, the Third Party Statement of Claim makes it clear that development of the land (as distinct from the reclaiming of land) occurred by 2002,[24] and occurred within the formal boundaries of lease 6351.[25] The appellant knew where the actual boundaries of lease 6351 were.
- [29] Notably, the Third Party Statement of Claim alleges that in 2006 the Moorings Ltd lease was granted to the appellant’s tenant who had occupied part of lease 6351.[26] Then, that tenant developed the Moorings Ltd lease, 7427, within the formal boundary of that lease, “using the boundary ... which was the known official boundary”.[27]
- [30] No relief sought by the appellant relates to the development on the Moorings Ltd lease, 7427.
- [31] Fourthly, more significantly, the Third Party Statement of Claim makes it plain, in our view, that the reclaiming of the land pre-dated the grant of lease 6351 in 1999. So much appears from paragraphs 5-7:[28]
“5. That, the plaintiff[29] was encouraged/directed by former Minister of Lands Lord Fakafanua Kinikinilau to reclaim the area whatever energy he can be able to do it apply for a lease and develop same but he will have to reclaim so that it can be leased. This was a steep cliff and part of the seashore.
Third alleged cause of action
[35] The third alleged cause of action challenges the Minister’s decision to grant a lease to the Manarangis. The argument runs thus:[30]
(a) the lease was registered in 2023 and that registration was a separate administrative decision;
(b) one issue arising out of that, is whether the area in dispute was legally available before the lease was granted to the Manarangis;
(c) another issue is whether the Manarangis’ defined boundaries in the deed of lease registered in 2023 are conclusive proof of the area in dispute;
(d) relying on Finau v Minister of Lands[31] and Fifita Manakotu v Vaha’i,[32] something cannot be granted unless it is available, and a minister must consider if the land is available before granting it; and further, while registration is strong evidence of ownership it is but one method of testing ownership;
(e) the Minister’s failure to make reasonable enquiries before granting the lease in 2023 resulted in an improper allocation of land that the appellant had occupied and used for many years; the Minister should have conducted a due diligence and taken into account “the Appellant’s undisputed possession”; and
(f) the cause of action only accrued in 2023.
- [36] In our view, this alleged cause of action suffers from the same difficulties as the previous points, but some in addition.
- [37] First, lease 6351 held by the appellant was granted in 1999. It specified its boundaries in a way that excludes the area in dispute. So much would have been known to the appellant.
- [38] Lease 7427 was first granted to Moorings Ltd in 2006. It specified its boundaries in a way that includes the area in dispute. That lease has passed to the Manarangis.
- [39] From the time lease 7427 was granted in 2006, the area in dispute was alienated to Moorings Ltd. That remained the case even if the appellant “reclaimed” the land by putting rocks and structures on it. The appellant did not have the consent of the lessee (Moorings Ltd) to do so and does not suggest that he did.
- [40] Secondly, this cause of action is not distinctly pleaded in the Third Party Statement of Claim. The closest one can get to such a claim is in paragraphs 19, 20 and 22:
“19. That, due to the misrepresentations of officers of the third party the defendant proceeded and developed the now disputed land which he was led to believe was his and the third party is estopped from now denying its existence and granted to the defendant for development.
...
(a) the reclaiming and development was as a result of misrepresentations causing him to believe the land was his; that plainly predates the grant to the Manarangis; and
(b) the claim is not that the grant could not be made to the Manarangis, but rather that the boundaries should be amended;
(c) that is reflected in the relief sought, namely correction of the boundary.[33]
- [42] Thirdly, it is evident from the Reasons and the written submissions advanced below, that this argument was not advanced before the learned primary judge.
- [43] Fourthly, the appellant’s third party claim included proposed relief by way of an adjustment to the boundaries of the two leases, relying on the powers under s 23 – s 29 of the Land Act. Counsel for the appellant did not identify any legal basis on which the Minister’s powers to amend the boundary may be invoked in the absence of a dispute about the accuracy of the survey plan. Given the grant of a clearly defined identical boundary under both the adjoining leases, there was no basis on which the Minister could grant such an adjustment.
Conclusion
[44] As will be evident from what has been said above, the asserted causes of action are, on the current pleading, unable to be maintained. They fail to articulate a viable cause of action. Whether the pleading might be recast is not a matter that need be addressed, as no application was made to amend below.
[45] We note that the Land Court Rules do not contain a rule dealing with joinder as a third party. However, as was conceded by Mr Sisifa SG, the Land Court may proceed as the Supreme Court would under Order 10 rule 1, which provides:
“0.10 Rule 1. Leave required to serve third party notice
Where a defendant who has filed a defence — (a) (b) (c)
(a) claims against a person not already a party to the action any contribution or indemnity;
(b) claims against such person relief which is substantially the same as that claimed by the plaintiff; or
(c) requires that any issue arising in the action be determined also as it affects such person,
that defendant may apply for leave to issue a third party notice.”
[46] There was no basis for leave to be granted under any of these provisions. The trespass claim made by the Manarangis was entirely separate and independent of the claims made by Mr Tangitau against the Minister and had no adequate nexus with the Manarangis’ claim. In our view, the learned primary judge was correct to order the claim struck out. The appeal must be dismissed.
[47] Result
1. The appeal is dismissed.
Randerson J
Harrison J
Morrison J
[1] To whom we shall refer, for ease of reference, as “the Manarangis”.
[2] To whom we shall refer, for ease of reference, as “the Minister”.
[3] Derived from the Statement of Claim and the appellant’s various submissions.
[4] Statement of Claim, paragraph 4.
[5] Statement of Claim, paragraph 14.
[6] Statement of Claim, paragraph 14.
[7] Statement of Claim, paragraph 15.
[8] Statement of Claim, paragraph 20.
[9] Statement of Claim, paragraph 19.
[10] Statement of Claim, paragraph 18.
[11] Referring to Masina v Hon Tu’ilakepa [1995] TO Law Rp 10.
[12] Reasons paragraph 16-19.
[13] Motuliki v Motuliki [2018] TOLC 6; Masima v Hon Tu’ilakepa [1995] Tonga Law Rp 10; Cocker v Cocker [2002] Tonga Law Rp 37.
[14] Emphasis added.
[15] Appellant’s outline in appeal, paragraph 25.
[16] Fau v Fau [2016] Tonga LR 172, upheld on appeal in Pua’a v Lavemai [2019] TOCA 14; and Kaufusi v Kaufusi [2017] TOLC 10.
[17] Statement of Claim, paragraph 14.
[18] Appellant’s outline on appeal, paragraph 29.
[19] Appellant’s outline on appeal, paragraphs 29-32.
[20] Relying on Ongolea v Finau [2002] Tonga LR 147.
[21] Paragraph 15.
[22] As to which see paragraph [31] below.
[23] Statement of Claim, paragraphs 17 (the [Manarangis] are the new owners of the Moorings Limited lease”) and 20 (“...
before granting the lease of the Moorings Ltd currently held by the [Manarangis]”).
[24] That is also deposed to in the appellant’s affidavit filed 4 April 2024, paragraphs 4 and 8.
[25] Paragraphs 8 and 9.
[26] Paragraph 10. See also the appellant’s affidavit filed 4 April 2024, paragraphs 9-11.
[27] Paragraphs 11-12.
[28] Emphasis added.
[29] This plainly means “defendant”.
[30] Appellant’s outline on appeal, paragraphs 33-43.
[31] Finau v Minister of Lands [2012] TOCA 9.
[32] Fifita Manakotu v Vaha’i (Noble) Vol II Tonga LR 121.
[33] Paragraphs (ii) and (iii) of the prayer for relief.
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