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

NO. L.924/97

BETWEEN:

1. PENISIMANI TAUFA
2. MATENOA MEI VAIOLA TAUFA
Plaintiffs

AND:

1. PAULA VEAMATAHAU
2. TALIHOUI LATU
Defendants

BEFORE HON JUSTICE FINNIGAN,
AND ASSESSOR TEVITA LUPEITU'U

Counsel: Mr Paasi for Plaintiffs, Mr 'Etika for Defendants

Dates of Hearing: 3 and 4 August 1999
Date of Judgment: 17 August 1999

JUDGMENT OF FINNIGAN, J

THE FACTS

The first plaintiff lives sometimes in Hawaii for medical treatment, but in the broad view has lived with his family on a town allotment in Haveluloto since 1973. He says that he paid the first defendant, who is registered holder of the allotment, $500 in 1971 and other sums besides, pursuant to an agreement for transfer of the allotment to him. He did not apply to register himself as legal holder of the allotment, but in 1996 his son did. That application was prevented by the recent registration of a 20-year lease of the allotment to the first defendant's son-in-law (the second defendant).

Since before the time of his occupation, i.e. since 1971, the first plaintiff has built and maintained two houses on the allotment, at notable expense. His son, the second plaintiff, actually lodged the application in 1996, on 8 May 1996, and sought registration for himself. The application was endorsed by the estate-holder, Hon Fielakepa, on 8 July 1996 after a survey had been done. No further steps were taken about that application by either the plaintiffs or the Ministry of Land, the application just lay in the file.

At that time the other application in respect of the same allotment had already been filed. This was by the son-in-law of the registered holder, who is second defendant. The Deed of Lease to the second defendant was put before the Court. It shows that Cabinet approved this application on 6 August 1996. One may assume that it was already well advanced when the application of the second plaintiff was endorsed by the estate-holder. The lease became effective on 23 April 1997, for 20 years.

Although the Registrar of Land gave evidence and produced the Deed of Lease, he did not produce any of the prior documents. The Court can make only one assumption, that the application complied with the Land Act, and can do nothing other than accept the Deed of Lease as the evidence of who is the current legal holder of the allotment.

Until the Deed of Lease was issued, the record shows that the legal holder of the allotment had been the first defendant. The first plaintiff had done nothing about registration until 1996, even though he had been living on the allotment since 1973. In evidence he said that this was because he had been busy educating his children and sending them overseas, and he had had some illnesses. He said he had applied at the first opportunity. He told the Court that although he was not himself registered his youngest son had made the application because he had provided for his eldest son an allotment in Hawaii.

The application was produced by the Registrar of Land. There is no record on it that a survey fee had been paid, and the plaintiffs did not produce a receipt. The first plaintiff told the Court that he gave $60 for the survey fee to the first defendant, it seems in 1973. The first defendant had been Assistant Chief Draughtsman in the Ministry of Land in 1970, and left the Ministry in 1982.

The Ministry of Land rejected the application, the first plaintiff said, for the stated reason that it did not have the signature of the legal holder, the first defendant. This refers to the absence of a surrender of the land by the legal holder, a necessary pre-condition, which is provided for in s 54 of the Land Act. There was a conflict in the evidence about whether the first defendant had filed a written surrender.

It is entirely clear from the evidence that the first defendant wrote a surrender of the allotment in favour of the first plaintiff dated 14 October 1970. This had received a written reply from the then Minister, dated 29 October 1970. A major conflict between these two parties in their evidence was over the terms of the surrender, and the letter itself was not produced in evidence. The Court was told that it had not been found. However the Minister's reply, which was, is clear. He told the first defendant that a road was intended through the school grounds of Tailulu to the first defendant's allotment and concluded (in translation)

"....it is difficult, but please consider another possibility because it seems unreasonable for a road to go through school grounds [to a town allotment]."

It is clear, and it is the Court's finding, that the surrender was not sufficient to be taken as the necessary pre-condition for the next step in registering the first plaintiff as the new legal owner of the land. The then Minister had rejected it. Unfortunately the first defendant did not tell the first plaintiff about this and it seems the first plaintiff never became aware of it. Neither was the Court told whether the road had been constructed, but it seems the Minister approved the next surrender by the first defendant, which was for the purpose of the application to lease to his son-in-law. Cabinet approved the latter surrender on 6 August 1996. There is no evidence that the first surrender was ever put to Cabinet for approval.

THE CLAIM

The plaintiffs ask the Court for orders cancelling the lease to the second defendant and directing that the allotment be registered in the name of either the first plaintiff or the second plaintiff. They also seek damages in the sum of T$ 100,000 and costs.

THE LAW

Counsel for both parties made admirably clear and concise submissions. However, neither referred the Court to any particular provisions of the Land Act, nor did they refer the Court to any decided authorities upon which either party relies. Mr 'Etika, on behalf of the defendants, submitted that there is no place for equity in the present application. He submitted that the Land Act is a complete code. He relied on a decision of the Privy Council, O.G. Sanft & Sons v Tonga Tourist Development Co Ltd & Ors, Appeal No 2/1981, as authority for that proposition. That judgment has been reported in [1981-1988] Tonga L R 26.

From the Land Act 1 note that s 7 is the general entitlement to a grant, and s 43 prescribes three rules, including the rule that an applicant must pay the prescribed fees. The other statutory provision that applies is s 54. This applies in a pre-1973 form because the purported surrender was lodged in 1970. My research indicates that the wording of s 54 in force in 1970 was enacted in Act No 19 of 1934, as published in the 1967 edition of the statutes. It may be that in 1970 surrender was permitted only to aged, ill or infirm people, but be that as it may, surrender at that time required, as it has continued to require to the present day, the approval of Cabinet. Whenever a purported surrender was made between 1970 and the present day, it could not be effective without the consent of Cabinet. There were substantial additions to s 54 by Act No 18 of 1991, which came into effect with the Royal Assent on 4 February 1992. Mr 'Etika submitted that the 1991 amendments cannot apply, and that is correct. These are of no effect because they post-date the events. In any event they did not repeal the requirement for Cabinet approval.

Apart from those statutory provisions, the plaintiff must rely upon case law principles. In addition to O.G.Sanft & Co Ltd (above), there are at least six decisions of the Privy Council which are important contributions to the law governing this case, 'Fifita Manakotau v Vaha'i (Noble) (1959) 2 TLR 12 1, Afu v Falakiko Lebas I I [1923-1962] TLR 167, Vaea v Minister of Lands & Fetu'ufuka [1974-1980] TLR 13, Havea v Tu'i'afitu & Ors. [1974-1980] TLR 55, Hausia v Vaka'uta & Minister of Lands [1974-1980] TLR 58, and Ongosia v Tu'inukuafe & Minister of Lands [1981-1988] 113.

The principles that I extract from the cases are as I set them out in Motuliki v Pohahau, L670/97, (unreported, judgment delivered 12 May 1999). For some of these principles there may be more than the one authority cited.

(i) where claim is made to an allotment each case must be decided on its own facts - Ongosia v Tu'inukuafe & Minister of Lands [1981-1988] 113:

(ii) good title is shown not by one fact alone, even by registration alone, and, to the contrary, it is not necessary to prove registration- Fifita Manakotau v Vaha'i (Noble) (1959) 2 TLR 121:

(iii) the priority of applications is no more than a factor to be taken into account in deciding between competing claims, and weighed with all the other relevant factors - Vaea v Minister of Lands & Fetu'ufuka [1974-1980] TLR 13:

(iv) the fact that an estate-holder has unfairly approved two applications for the same allotment is not sufficient to upset the completed registration of one of them - Afu v Falakiko Lebas II [1923-1962] TLR 167:

(v) to upset a registration a plaintiff must show that in making the grant the Minister acted on wrong principles - Afu (above):

(vi) more particularly, the Court will upset a grant only if the person challenging its validity establishes that the Minister has acted contrary to statute, or in breach of the rules of natural justice, or in breach of a clear promise by the Minister and the estate-holder- Havea v Tu'i'afitu & Ors. [1974-1980] TLR 55.

I accept the main submission made by Mr 'Etika. The case must be decided on its own facts. There is no room for equitable principles, except in deciding whether the Minister in registering the first defendant failed in any statutory duty, and/or breached the rules of natural justice and/or broke a clear promise made to the plaintiff by himself or by the estate-holder. For this proposition I rely upon the provisions of the Act itself, as reinforced by the decision in O.G. Sanft & Co Ltd (above), and the other decisions of the Privy Council which I have set out above. 

THE DECISION

The plaintiffs seek two things. First they seek removal of the current registered lease. Second they seek registration of one of them as the titleholder. Both the first plaintiff and the first defendant put a great deal of emphasis on the history of the matter, each telling the story from his point of view. They were strongly in conflict. This is a pity, and their conflict is unnecessary, because this claim in the Land Court must be decided by the code that is set out in the Land Act. The essential evidence is what is recorded in the Ministry of Land.

First, Cabinet approved on 6 August 1996 the surrender of the land on lease for 20 years to the second defendant, and the Minister subsequently issued a Deed of Lease. There has been no evidence at all to show that in issuing that Deed of Lease the Minister acted contrary to statute, or in breach of the rules of natural justice, or in breach of a clear promise by the Minister and the estate-holder. There has been no reason shown to disturb this action by the Minister, and while the lease remains it prevents any further registration in respect of this allotment until 2017.

Second, there was no proper surrender of the allotment by the first defendant to the first plaintiff. There was initially an attempt to surrender the land to the first plaintiff, but the Minister promptly required the first defendant to reconsider. There was no surrender of the land after that by the first defendant, until he surrendered it to his son-in-law for lease. It may have been unfair that the first plaintiff was not told of this immediately, but the first plaintiff took no steps to safeguard whatever rights he had acquired in 1970. Had he done so he might have learned there was no adequate surrender and he may have had a remedy in contract. The end result is that the registered landholder did not give a proper surrender. Even if he had, there is no record that it was approved by Cabinet, which is a necessary part of any surrender under s 54.

Third, there is no record of any fee paid by either plaintiff as required by s 43. 

The only conclusions to which the Court can come are that the second defendant has a valid 20-year lease and the plaintiffs have no right registration. The Court must uphold the prayer of the defendants that the plaintiffs' claim to registration be dismissed.

I turn to the claim for damages. As pleaded in paragraphs 22 to 24 of the statement of claim, it seems to be based in both tort and contract. This claim was not otherwise explained, either as to basis or 'as to its quantum. It was pleaded without reliance on any provisions in the Land Act. In the evidence there were totally conflicting accounts by the first plaintiff and the first defendant about what their arrangement had been. On the balance of probabilities, we reached certain conclusions about that, but this is not the place to express them. Claims in tort and contract are for the civil courts. This claim likewise is dismissed.

In closing, Mr 'Etika sought an order evicting the plaintiffs from the allotment. This was not part of the case leaded by the defendants, who did p not file any claim nor seek any remedy. The case was about the plaintiffs' about the plaintiffs' right to claim to registered title. This was not litigation about the plaintiffs’ right to occupy the land. The only order that the court can make in the defendants' favour is the one they sought in the proceedings, dismissal of the claim to registration.

COSTS

There will be an order for costs following the event. The plaintiffs must pay the defendants' costs, to be agreed or taxed.

NUKU'ALOFA: 17 August 1999

JUDGE