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Kaufusi v Clarke [2025] TOLC 1; LA 10 of 2022 (21 January 2025)

IN THE LAND COURT OF TONGA
NUKU’ALOFA REGISTRY

LA 10 of 2022

BETWEEN:
KIVA KAUFUSI

- Plaintiff

AND:
1. ANDREW CLARKE
2. MINISTER OF LANDS
- Defendants

JUDGMENT

___________________________________________________________________________

BEFORE: HON. JUSTICE P TUPOU KC
HON. LAND ASSESSOR FAIVA TU’IFUA
Appearances: Mr S. Fili for the Plaintiff

No appearance by the First Defendant
Attorney General Folaumoetu’i and Miss Aleamotu’a

for the Second Defendant
Hearing: 25 March 2024
Judgment: 21 January, 2025

Background

1. The plaintiff, Kiva Kaufusi is the registered holder of a town allotment at ‘Utungake, Vava’u best described under Deed of Grant registered on Book 294 Folio 78 consisting of 1R 00p (lot 86). Next to his town allotment is lot 87 which, at the time he registered his town allotment, was still part of Lord Tuita’s estate. Lot 87 consisted of a total area of 1R 0.47p^[1].
2. The First Defendant, Andrew Clarke, is the holder of Lease No.8331 of the neighbouring land being lot 87A on survey office Plan 4747B^[2].
3. The plaintiff applied to have his town allotment extended from part of lot 87. The estate holder agreed and the Plaintiff lodged his application for the extension with the Second Defendant.
4. The complaint concerns an area of 2p claimed to have been deducted by the Second Defendant from the area intended for the Plaintiff’s extension and added onto the First Defendant’s lease by mistake.
5. The Plaintiff seeks orders that the Second Defendant correct the area on his Deed of Grant to include the 2p which was erroneously included in the First Defendant’s lease.
6. Unlike the Second Defendant, the First Defendant has taken no steps to defend the Plaintiff’s claim.
7. The Second Defendant denies it ever received an application from the Plaintiff for an extension of 20.2p and therefore was not under any duty to hear from him when he granted the material 2p to the First Defendant. It was maintained that the areas for the Plaintiff’s town allotment as well as the First Defendant’s lease is correct.
   

The Witnesses

8. The Plaintiff gave evidence and the Second Defendant called Ms. Haitelenisia Mankofua Penitoni and Mr. Warrick Vea, both from the Ministry of Lands.
9. I found the Plaintiff’s evidence consistent and unshaken during cross examination. I found him to be a credible witness. Where his evidence differed from that of Ms. Penitoni, I preferred the Plaintiff’s evidence. Mr Vea appeared to produce the documents held on the file after undertaking a search of the records for the purposes of this trial.
   

The Evidence

10. The Plaintiff resides in New Zealand and is a vehicle inspector. He was previously employed by the Government of Tonga at the Ministry of Works as it was then (now known as Ministry of Infrastructure) prior to moving to New Zealand.
11. His town allotment is situated on Lord Tuita’s estate ‘at ‘Utungake, Vava’u consisting of a total area of 1r (rood) 00p (perches). It was registered on 1 January, 1998.
12. Ms. Penitoni is employed in the LGIS Division of the Ministry of Lands as a section draughtsman. She has held that position for 24 years. She was consulted by the Plaintiff amongst others in the Ministry of Lands in relation to the extension of his town allotment.
13. Warrick Vea is a Land Registration Officer at the Land Administration Division of the Ministry of Lands. He has been employed by the Ministry for 22 years.
14. As mentioned, on 1 January, 1998 the Plaintiff’s town allotment situated at ‘Utungake, Vava’u was duly registered.
15. On 1 September, 2003, Lord Tuita signed an application by the Plaintiff to have an area of 14p^[3] from lot 87 added as part of his already registered town allotment. It is accepted that the Plaintiff was assisted by the staff of the Ministry of Lands. It is evident from the information contained in the application that the Plaintiff or any ordinary member of the public would not have known the area of the land or that it was contained in Plan 4747B unless he was assisted by persons at the Ministry with access to that information.
16. Mr. Vea produced a Savingram dated 18 April, 2006^[4] in relation to this particular application and attached to it is a map^[5]. The map identified the area required from Lot 87 intended for the Plaintiff’s extension. That area is marked by a straight line matching the width of the existing allotment on both sides drawn parallel right up to the end of the boundary of Lot 87 facing the Plaintiff’s allotment. Mr. Vea could not locate a copy of this application on file.
17. At a later stage, the Plaintiff was informed that his request for extension could not proceed owing to an existing mortgage against his allotment. The Plaintiff accepted the explanation and waited.
18. The mortgage was discharged in 2012 permitting the Plaintiff’s application to proceed. He was required to return his original Deed of Grant with his application for the extension of 14p^[6] from Lot 87.
19. In 2013, the Plaintiff was informed by the Ministry that the area intended for his extension was actually 18p and not 14p. A fresh application was prepared which the Plaintiff sent to Lord Tuita who approved and signed. Mr Vea produced a copy^[7] of the application with a letter^[8] from Lord Tuita expressing his consent for the 18p to be given to the Plaintiff and a sketch map^[9]. This sketch map shows the exact same area and shape as the sketch map attached to the application for the 14p. Only now, the area is marked 18p.
20. In January, 2014 the Plaintiff was in Vava’u and went to check on his extension. He met Mr. Paula Lo’amanu Moa. Mr. Moa revealed that the correct area of the land intended for his extension was not 18p but 20.2p. Again, a sketch map showing the same area indicated in the two earlier applications was produced and this time marked with 20.2p^[10].
21. Mr. Moa apologized and presented the Plaintiff with two options. One, to proceed with the current application before the Ministry for 18p or lodge a fresh application for the area of 20.2p. The Plaintiff opted for the latter.
22. With assistance from Ms. Penitoni, the Plaintiff completed the application form and forwarded it to Lord Tuita with another apology for the repeated mistakes. Lord Tuita signed the application^[11] on 6 May, 2014 and the Plaintiff faxed the fresh application to Ms. Penitoni.
23. After sending the application through, the Plaintiff called Ms. Penitoni who confirmed receipt of the same and assured him that they will proceed with his application. The Plaintiff waited.
24. Meanwhile, in May, 2015, the Ministry received an application by the First Defendant to lease 22.47p from Lot 87.
25. On 6 May, 2015, Lord Tuita had signed the First Defendant’s lease application. Exactly, a year from when he signed the Plaintiff’s application for the 20.2p.
26. On 28 August, 2015, the First Defendant’s lease was approved by Cabinet.
27. On 7 September, 2015, a direction by the Minister was issued to survey the First Defendant’s lease for an area of 22.47p from Lot 87A on Plan 4747B^[12].
28. In October, 2015 Ms. Penitoni contacted the Plaintiff that his Deed of Grant was ready for him to collect, upon payment of a fee. The Plaintiff requested that it be sent to the Vava’u office as he would be there at the time.
29. The Plaintiff picked up the Deed from the Vava’u office in November. He immediately noticed the extension was not the 20.2p he applied for but 18.2p. He called Ms. Penitoni about the mistake. She requested he return the Deed for correction.
30. The Plaintiff dropped off the Deed to Ms. Penitoni at the Ministry of Lands office in Tongatapu before he returned to New Zealand at the end of November, 2015. Ms Penitoni told him they will work on it and the Plaintiff had not heard back from her since.
31. In 2018, while he was in Vava’u on holiday, the First Defendant lodged a complaint with the police that resulted in the Plaintiff and his family taken in to the police station for questioning for trespass. That is when he discovered that the correction of his deed was not completed. Instead, the First Defendant was granted 2p from the area he applied for.
32. Ms. Penitoni denied she assisted the Plaintiff with his applications. She said that her assistance was limited to following up his application for the 18p. When the extension was registered, she gave the Plaintiff the Deed in a manila folder at the Nuku’alofa office and that was her last encounter with the Plaintiff.
33. She was shown the letter from the estate holder at page 54 of the court book endorsing an area of 18p to be granted to the Plaintiff. She told the court she had never seen the document before and did not know about the name “Sia” or the phone number at the top of the letter. I prefer the Plaintiff’s evidence that he faxed this with his application to Sia.
34. Ms. Penitoni also denied she received the Plaintiff’s Deed back from him for correction. She said that she met the Plaintiff to hand him his Deed, they looked at it together and that was the last time she saw him.
35. If that were true, the Ministry would not have two originals of the Plaintiff’s Deed in its possession. Mr. Vea admitted under cross examination that the Ministry was in possession of the two original deeds for the Plaintiff’s town allotment.
36. Mr. Vea explained that once registration of an allotment is completed, one original is issued to the allotment holder and the other is kept in the office. The questioning proceeded as follows:
    

Mr. Fili: There are two originals of pg.26^[13] kept at the Ministry?
Mr. Vea: Yes
Mr. Fili: It was returned for the purposes of correction?
Mr. Vea: Yes
Mr. Fili: To include the 20.2p?
Mr. Vea: Yes
Mr. Fili: When will that be done?

Mr. Vea: It is not possible because the 2p had been included in the lease.

37. No other evidence of the Plaintiff returning the Deed is before this court. It is more likely than not, that the Plaintiff’s recollection of his meeting with Ms. Penitoni to return it for the correction is more accurate.
38. When Ms. Penitoni was shown the Deed she claimed to have issued and asked if she had noticed that the area granted was 18.2p and not 18p. Ms. Penitoni said, she has just noticed that for the first time. Clearly, had she looked at the Deed together with the Plaintiff (as she alleged) who noticed the error when he received the Deed, her attention would have been drawn to it, there and then.
39. During her evidence Ms. Penitoni attempted to present a purely professional attitude in her dealings with the Plaintiff. But her evidence confirms otherwise. She gave him her Facebook username, asked him for a card to call him, received lunch money and asked him for cigarettes.
40. On 26 February, 2018, the Plaintiff wrote^[14] to the Minister about his request to correct the area of 20.2p amongst other things including the embarrassment and distress he and his family suffered when they were taken in to the Police station for questioning resulting from a complaint lodged by the First Defendant.
41. Mr. Vea said that they required the original of the application for 20.2p to be able to deal with the above complaint. He told the Court it was possible the application was in another file.
42. The Plaintiff produced a Deed^[15] with the area required drawn on it with a sketch map showing the area as on the previous three sketch maps produced by the Plaintiff, attached with his applications. He said that the Deed and sketches were given to him by the staff of the Ministry showing the correction that should have been made and a sketch map at page 30 indicated the area that was taken from his allotment.
    

The Law

43. There is a well-established presumption^[16] that registration of land is final unless it is shown to have come about by error of law, or as result of fraud, mistake, breach of the principles of natural justice or breach of a promise made by the Minister or the estate holder.
44. Here, the Plaintiff claims that the Minister of Lands made a mistake in excluding the 2p he applied for and seeks an order for corrections to be made in that respect. The burden of proving the Minister’s mistake is on him^[17].
45. Counsel for each party filed submissions for which I am grateful.
46. This case amongst others unfortunately reveals how a simple application can create extreme consequences for all involved.
47. On balance, I believe that the correct area that the estate holder intended to grant the Plaintiff was all of that area running in parallel and equal in width to his town allotment in a straight line to the end of Lot 87 consisting of an area of 20.2p.
48. I accept the Plaintiff did not come up with that area on his own, but he was furnished with that information by staff of the Ministry. He did everything he was required to do with assistance from the staff of the Ministry to have the 20.2p added onto his town allotment. I reject the suggestion that he failed to lodge his application when he was actively being assisted by Mr. Moa and Ms. Penitoni at the time.
49. Further, the Ministry did not have, on file, his application for the 14p despite evidence of a Savingram on file to the Minister requesting that a survey and map be prepared. It is highly likely in another file like the application for the 20.2p as suggested by Mr. Vea.
50. The deed of grant and sketch maps at pages 27-29 of the court book was given to the Plaintiff by staff of the Ministry of Lands to show the area that was taken from the area the estate holder consented to give him from Lot 87. Clearly, this correction resulted from his request either to Ms. Penitoni or as a result of his letter of 26 February, 2018. The evidence was unclear as to when those documents were produced. Ms. Penitoni said she had never seen these documents but admitted that the variation to the area would have been done by someone in the office.
51. The First Defendant elected not to take part or defend his interest. However, it is clear that his application for lease followed that of the Plaintiff’s for his extension.
52. In fact, the Ministry did not issue the Plaintiff’s deed of grant until after they had surveyed the First Defendant’s lease. It ought to have been clear to the Ministry that 2p of the First Defendant’s lease was from a part of the Plaintiff’s intended extension. They had the sketch maps as early as the application for the 14p in 2003.^[18]
53. The Plaintiff alleged there was a toilet on the disputed land. Mr. Vea, when asked during evidence in chief if he had anything to do with the First Defendant’s lease, acknowledged there was a toilet there and a la’i’ata (photo).
54. In the case of Palavi v. Cocker & Min. of Lands [1996] TLR 246, the Second Plaintiff had applied for a lease of a strip of land next to his allotment in January, 1989.
55. In May 1989, the First Defendant applied to lease the same land for 50 years. His application was approved in July, 1989 and a lease was reigstered in his name accordingly. Like the Plaintiff here, the Palavis’ approached the Ministry. He was told that the First Defendant would be required to release his lease before a lease can be granted to them. Nothing turned on those discussions and the Palavis initiated proceedings in the Land Court.
56. Hampton CJ in setting aside the Minister’s decision to lease to the First Defendant, held that the decision to grant the lease to the appellant:
    1. was made in ignorance of the application made almost contemporaneously by the second respondent;
    2. was made without giving either of the plaintiffs an opportunity to be heard in support of the said application; and
    100. was made with the Minister being unaware of the second respondent's application when the first defendant’s application was submitted to Cabinet for approval.
57. His Honour applied the Court of Appeal observation in Hakeai v. Min. of Lands & ors 1996 TLR 142, pg.3, that:

"It is clear law that a person whose rights interests or legitimate expectations are imperilled by an official's consideration of some other person's applications will generally be entitled to a fair opportunity to be heard before a decision adverse to him is made. This is what is known as natural justice. Here although the official of the Ministry of Lands knew the surrender had been arranged to enable him to apply for a grant of the allotments, he was not given any opportunity to argue that he should have priority before the purported grant was made to the Appellant. That was legally wrong. If he had been given the right to comment this whole matter might well have ended then. It is to enable both sides of a case to be considered that the principle of natural justice exists."

58. On appeal, the Court of Appeal upheld Hampton CJ’s decision.
59. For all of the above reasons, I am satisfied on the balance of probabilities that the Plaintiff has proven his case and I find that the Minister’s decision to grant the First Defendant’s lease was mistaken in that:
    1. it was made in ignorance of the Plaintiff’s application that was originally filed on or around 18 April, 2006^[19];
    2. he failed to consider the sketch maps on the Plaintiff’s applications (provided by Ministry staff), which ought to have alerted him to the fact that the First Defendant’s lease was extending onto the area intended for the Plaintiff’s extension;
    100. he did not give the Plaintiff an opportunity to be heard on why he ought to be given priority on the allocation of the disputed 2p; and
    4. he was unaware of the Plaintiff’s application for 20.2p from Lot 87;
60. For completion, I note that the Plaintiff had disclosed that he had applied and obtained citizenship in New Zealand. A copy of his Tongan passport with an expiry date in 2026 was produced. His registration was not challenged and was not subject to argument.
    

Result

61. Judgment is granted in favour of the Plaintiff and I make the following orders:
    

61.1 That the Second Defendant, the Minister shall give effect to the Court’s findings forthwith by:

1. Cancelling the Deed of Grant registered in the name of the Plaintiff.
2. Cancelling Lease No. 8831 registered in the name of the First Defendant, Andrew Clarke.

100. Issuing the Plaintiff a fresh Deed of Grant for his town allotment to include the disputed 2p increasing the total area of his town allotment to 1r 20.2p.

4. Then, the Second Defendant shall re-issue the First Defendant’s Deed of Lease with the previous total area of 22.47p reduced by 2p.
   

62. The mistake giving rise to this proceeding was the Minister’s alone. Accordingly, costs are awarded to the Plaintiff to be paid by the Second Defendant.

P. Tupou KC
J U D G E
NUKU’ALOFA: 21 January 2025

^[1] Refer pgs.53 and 56 of Court Book (CB)
^[2] Refer Deed of lease pg. 63
^[3] Refer pg.22 of CB
^[4] Ibid pg.52
^[5] Ibid pg.53
^[6] Ibid pg.22
^[7] Ibid pg. 55
^[8] Ibid pg.54
^[9] Ibid pg.56
^[10] Ibid pg.25
^[11] Ibid pg.24
^[12] Pg.60 of CB
^[13] the Plaintiff’s Deed of Grant
^[14] Refer pg.31-32 of CB
^[15] See pgs.27-29
^[16] Skeen v Sovaleni [2005] TLR 298
^[17] Lautaha v Minister of Lands & anor [1995]TLR, 153
^[18] See pgs.52-53 of CB
^[19] See pg.52 of CB