[1923-1962] Tonga LR 155
IN THE HIGH COURT OF TONGA

NUKU'ALOFA REGISTRY

BETWEEN:

KAPETI MAKA
(Appellant)

v

THE MINISTER OF LANDS AND 
VILIAMI 'ASIPA
(Respondent)

This is an appeal from the decision of the Land Court (Hunter J.). The plaintiff (appellant) submitted that the Minister had made an error in registering the defendant (respondent) as the holder of an allotment named "Tou one" and that his (the plaintiffs) application should have been granted by the Minister. The Land Court refused to upset the Minister in the exercise of his discretion in granting the allotment to the defendant and the Privy Council upheld this decision, but held that as the defendant had already obtained a judgment in Land Court in 1947 for a different allotment the grant by the Minister of "Tou'one" to the defendant was invalid in view of S.48 of the Land Act.
The judgment of the Privy Council (Hammett C.J.) delivered on 12th December, 1958 is as follows:
The Plaintiff-Appellant claimed an allotment in an area known as "Tou'one" at Fatuinu on Crown Land. He had applied to the Minister for the allotment on 29th August, 1951.
The Minister considered this application together with two other later applications and on 10th September, 1952, granted the allotment to the Defendant.
The Plaintiff was agrieved at this decision of the Minister and brought this Action in the Land Court which upheld the Minister's decision by its judgment dated 19th November, 1956.
The Plain-tiff now appeals to this Court on several grounds of which the most important appear to be that the Plaintiffs family had, in the past, cultivated the land and that the 2nd Defendant had in a previous case in 1947 in the Land Court successfully claimed a nearby allotment on land known as "Hiku-tavake". It is alleged that the Minister of Lands has allocated the 2nd Defendant this part of Tou'one in mistake for the part of Hikutavake to which the Land Court had said he was entitled.
Section 50 of the Land Act (Chapter 45) provides that land for an applicant living in an hereditary estate shall be granted out of that hereditary estate or out of another estate of the same estate holder. It is only if no land is available' in the estates of the Noble in whose estate the applicant resides or in another hereditary estate which another Noble is willing to provide, that an applicant may have his allotment granted to him out of Crown Land.
The Minister of Lands did not grant the Plaintiff the allotment in Tou'one because the plaintiff resides in the estate of Tungi at Tatakamotonga and Tou'one is Crown Land. The land Court held that in these circumstances there was no reason to interfere with the decision of the Minister of Lands because there was no evidence that there was no land in the hereditary estate in which the applicant resides available to the Plaintiff. In our opinion the Land Court was correct in this view.
What has caused us some concern in this case however, is this.
In Land Court Case No. 101 of 1947, Viliami 'Asipa, the Defendant-Respondent in the case now before us, obtained judgment against the Minister of Lands and Salesi Kautoke. In that case it was ordered that the allotment of Sulio Malupo be surveyed and out of it an allotment of 8, acres be granted to Viliami 'Asipa. This land appears to be in Hikutavake which is Crown Land adjoining Tou'one. The Minister of Lands has not yet com-plied with the terms of the judgment of the Land Court in that case. In the meantime the Minister of Lands has granted Viliami 'Asipa another allotment in Tou'one about which this case is Concerned.
If the present decision of the Land Court is upheld in toto, Viliami 'Asipa will by different orders of the Land Court be entitled to two allotments - one in Hikutavake and one in Tou'one. This would be in direct contravention of Section 48 of the Land Act which forbids the holding by one person of two tax allotments. Should this occur Section 48 provides that the second grant shall be null and void.
Whilst therefore we agrees with the decision of the Land Court in this case that the claim of Kapeti Maka to this allotment in Tou'one must be dismissed, we are of the opinion that Viliami 'Asipa has even less right to that allotment than Kapeti Maka. Since Viliami 'Aspia has already by the judgment of the Land Court in Case No. 101 of 1947 been granted one allotment, we consider the Minister of Lands was wrong in later granting him this other allotment in Tou'one.
We do, therefore, direct that the registration of Viliami 'Asipa as the holder of the disputed tax allotment on part of Tou'one referred to in this case as "Tou'one Number 3" be cancelled' and that the Minister of Lands do comply with the Order of the Land Court in Case No. 101 of 1947 and register Viliami 'Asipa as the holder of the allotment thereby granted to him in Hikutavake.
As. a. result, "Tou'one Number 3" will again become available for allotment by the Minister of Lands to such of the persons who. May be entitled thereto as he shall decide in exercise of the powers granted him by Land Act.
In these circumstances, we dismiss the appeal and order that both sides pay their costs in both the Land Court and in this Court.