IN THE LAND COURT OF TONGA
NUKU'ALOFA REGISTRY

NO. L.628/1997

BETWEEN:

'OFA KI HE LOTU KOLOI
Plaintiff

AND:

1. 'ENELE ONGOONGOTAU
2. MINISTER OF LANDS
Defendants

BEFORE THE HON CHIEF JUSTICE WARD
with assessor Hon Tu'ilakepa

Hearing: 7 and 8 June 2001
Judgment: 22 June 2001

JUDGMENT

The plaintiff claims a town allotment in Tofoa, known as Pule'anga, lot 36 on survey plan 3403, which is registered in the name of the first defendant. However, the case also requires examination of the title to another town allotment, Talaufanga, in Hihifo, Ha'apai which is also registered in the name of the first defendant. He has explained to the Court that he understood until recently that it had been re-registered in the Government's name and that he has retained no rights to it.

The plaintiff told the court that he is a resident of Tofoa and, in 1993, he applied for a town allotment. Before submitting his application, he came to the Ministry, was shown a plan of the available lots and decided to apply for the lot in question. He put in his application on 30 August 1993 and was advised it had been approved by the Minister and that he should pay his survey fee. He did so on 9 September 1993 and then waited for the registration. He tells the court he went a number of times to enquire about this because he needed the deed to be able to apply for a loan. However, after a number of visits, he was eventually told, in early 1994, that his application had been cancelled and the land allocated to someone else. That other person was the first defendant.

The first defendant is from Ha'apai. His town allotment was Talaufanga and he had held it since it was registered in his name in 1966. He moved to live in Hawaii in 1978 but, in the early 1980s, he was advised the Government wished to use some allotments in Hihifo, including his, in order to move the Primary School and extend the rugby field. He came to Tonga and agreed with the, then, Minister of Lands, Baron Tuita, to exchange his allotment for another one in Tofoa.

He then came to Nuku'alofa where the Minister instructed one of his staff to take him out to Tofoa and show him the plots that were available as the result of the division of a tax allotment. He told the Court that he chose this particular plot and arranged, as he no longer lived in Tonga, for a cousin to look after the land. When that cousin died, he asked a brother in law to look after it.

He said that he signed an agreement to exchange the two 'apis and left it with the Minister of Lands. He retained no copy and no copy has been found in the records but he believed the exchange had been done and that he had given up all rights to the allotment in Ha'apai.

In 1993 he was visiting Tonga and the Hon Ma'afu Tupou who was, by then, the Minister, asked him to come and see him about the Tofoa allotment. The Minister said that it had been approved by Cabinet but there was no record of the exchange. It is clear that an application had been put in on behalf of the first defendant on 8 April 1991 but nothing further had been done. The Minister signed it on 5 October 1993 and instructed that it should be registered in the name of the first defendant.

It is clear that the allotment in Tofoa is registered in the name of the first defendant and the evidence in the case has shown that the allotment in Ha'apai is also still registered in his name.

There is no dispute about the events outlined above.

The evidence confirmed that in the 1980s there had been a fono in Ha'apai at which Baron Tuita had explained the need to take some of the allotments bordering the Government Primary School and the playing field. It is also clear that the first defendant's allotment was one of these and that he took one of the allotments in Tofoa in exchange.

When the plaintiff's application for the land in Tofoa was produced to the Court, the handwritten notes on it revealed the chain of events in 1993 and, in those, lies the answer to this claim.

The application is dated 30 August 1993 and there is a note bearing the same date written by the Hon Ma'afu Tupou instructing that the survey fees should be paid, the legal process completed and a plan drawn up. This appears to be the normal procedure and suggests, as the plaintiff believed, that the Minister was going to approve the grant of the land to him.

However, on the same date, the Minister added another note addressed to "Paula" directing him to check the application by the first defendant (presumably that dated 8 April 1991) "whether any work had been done to it or not. If not, then proceed with [the plaintiff's] application". The Paula named there is Paula Moala who was then the Assistant Secretary of Lands. It was he who had assisted the plaintiff with his original application and who had passed on the Minister's instruction to pay the survey fees. He wrote a note on the application form dated 8 September in which he advised; "It is respectfully advised that this 'api was exchanged with the Government to have the 'api in Ha'apai and for this person to move to Tonga. The registration has not been completed."

Strangely, despite this, the Minister signed the plaintiff's application that same day although the registration process for the plaintiff never proceeded further. There is instead, a note by the Minister dated 5 October 1993; "Carry on with the exchange of 'apis instructed by Baron Tuita and cancel the application of [the plaintiff]." On a separate piece of paper but attached to the application form is a note listing the steps originally advised by the Minister in his first note of 30 August 1993 but the Minister also wrote a note on that on 5 October advising Paula to "cancel this and return the 'api to Enele 'Ongoongotau."

The first defendant's case is that there is a clear registration of the allotment in Tofoa in his name and that is an end to the matter. He now realises that the 'api in Hihifo remains in his name but he was unaware of this and has never retained any rights to it. Any failure to register it in the name of the Government is an oversight by the officials in the Ministry and does not affect his right to the 'api in Tofoa.

His evidence painted a somewhat different picture. Despite the intention of Baron Tuita, the 'api in Ha'apai has never been used by the Government. It was put to the first defendant in cross examination that his family are living on the land, that he has continued to use it as his own and has built a substantial building on it for them to use. He agreed this was the case and told the court that he had spoken to the Minister and was told he could use the land but he had no rights to it. It was confirmed by the Assistant Registrar of Lands in Ha'apai that the first defendant's younger brother and his 'in laws' are also living on the land.

The plaintiff's case was originally that the land had been granted to him in 1993 and the subsequent grant to the first defendant was unlawful. As the evidence has demonstrated, however, that is not correct. Counsel for the first defendant submits, that the Minister is not bound by his signature of approval and, in the event, there was no transfer of the land to the plaintiff. The Minister has a wide discretion and where there is evidence of a valid registration, it can only be upset if it is demonstrated, inter ali, that the Minister acted under mistake or in breach of statute.

However, counsel for the plaintiff has suggested that the evidence shows that the Minister did not act in accordance with the statute in 1993. It is clear this was not a case of resumption of land for public purposes whatever the intention of Baron Tuita. Part IX of the Act sets out the procedures required in such cases and there is no suggestion that they were followed.

Section 55 allows exchange of allotments but it requires the consent of Cabinet. Although the first defendant spoke of a reference by Hon Ma'afu Tupou to Cabinet approval, no such decision has been produced. In the absence of clear evidence, the court cannot accept that there was in fact such approval whatever the comments made to the first defendant by the Minister. In fact, the evidence before the Court takes it further. The notes on the plaintiff's application show that, when the Minister instructed that the land should be registered in the name of the first defendant, he was not doing so in accordance with a Cabinet decision but simply to carry out an instruction of Baron Tuita about which he had been told. In reaching his decision, he was entitled to take any earlier arrangement into account but he should have checked that the proper procedures had been completed before accepting it as a properly reached decision. It was not sufficient simply to assume, as he appears to have done, that they had been. I am satisfied on the evidence before the court that, whatever the intention of the parties in the 1980s, no proper steps were taken to effect the exchange in accordance with section 55 of the Act.

The fact that the 'api in Ha'apai is still registered in the first defendant's name adds weight to this interpretation. Had Cabinet approval been obtained and the proper procedures followed, that 'api would have had to be transferred out of his name in order to allow the Tofoa allotment to be registered in his name as he is not entitled to hold two town allotments. This was not done and it is only too clear that the Minister did not take any steps in 1993 to check whether the first defendant still had another town 'api when he directed the registration of the allotment in Tofoa.

Further, having been advised of Baron Tuita's earlier instruction, the Minister simply directed that the plaintiff's application be cancelled. He had no power to do that. As I have stated, the Minister, when deciding such applications, has a wide discretion but it must be based on a consideration of the merits of any competing applications. It is not a proper exercise of that discretion to approve one and simply ignore the others. That is, all too clearly, what Hon Ma'afu Tupou did on 5 October 1993.

I accept that, in general terms, the first defendant acted in good faith in taking the allotment in Tofoa and, in those circumstances the court will be reluctant to interfere at this stage. However, I am satisfied he has not acted in the same spirit since.

The entitlement to allotments, as set out in section 50, is given to applicants lawfully resident on the hereditary estate. The meaning of residence was considered by the Court of Appeal in Moa v Faka'osita and others (1991) Tonga LR 32 and the Court added that the Court should consider the position in relation to residence at the time the matter comes before the Land Court.

At the time the first defendant was making the exchange of allotments, he was not living in Tonga. He had gone abroad in 1978 and was living in the United States of America. Whether, at that time, he could have been resident here as defined in Moa's case may be open to challenge but, if there was any doubt about his residency in the early 1980s, there is none now. Although he professed in his evidence not to be able to recall exactly when it happened, he agreed that he is now and has been for some years a citizen of the United States. In those circumstances, I do not consider any possible equitable rights to the allotment have accrued to him as might have been the case if he had been living there in good faith based on a genuine belief in the validity of the transfer. Such a claim would have been stronger if his genuine belief had been demonstrated by abandoning the previous allotment but, on the contrary, the evidence is that, not only is that allotment still registered in his name but he has been acting as if he still holds the title since the agreement to exchange.

I do not accept his claim that, until this action was brought, he was unaware of the fact the Ha'apai 'api was still in his name. The fact he applied in 1991 to have the 'api in Tofoa registered must have been because, at that stage at least, he knew it had not been registered and I am satisfied that he must also have known then that the previous allotment had remained in his name.

In the circumstances, I am satisfied the Minister was acting under a mistake in 1993. That led him to act outside the provisions of the Land Act and he failed to exercise his discretion properly or at all when he directed that registration of the allotment in the first defendant's name.

I order that the registration of the land in Tofoa in the name of the first defendant be cancelled and the Minister be asked to decide de novo how the land should be allocated on the applications of the plaintiff (made in 1993) and of the first defendant (made in 1991).

I consider it is proper to direct his attention to the question of the residence of each of the applicants and the first defendant's admitted citizenship of the United States of America.

He is further asked to consider the proper registration of the 'api in Ha'apai in the light of his decision about the allotment in Tofoa and the residence of the first defendant.

Finally, it is clear that much of this arose because of the Ministry's failure to carry out proper procedures in the 1980s and a similar failure by the Minister in 1993. In those circumstances I consider that the Minister must contribute to the plaintiff's costs. There is no evidence that, in the 1980s, the first defendant had anything to do with those failures but his conduct since has contributed to the continuance of the situation. In those circumstances I consider the appropriate order is that the first defendant shall pay two fifths and the second defendant shall pay three fifths of the plaintiff's costs and I so order.

NUKU'ALOFA: June, 2001

CHIEF JUSTICE