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Kaufusi v Kaufusi [1998] TOLawRp 24; [1998] Tonga LR 173 (7 August 1998)

IN THE COURT OF APPEAL OF TONGA
Court of Appeal, Nuku’alofa

CA 3/98

Kaufusi

v

Kaufusi

Burchett J, Tompkins J, Beaumont J
6 August 1998; 7 August 1998

Land ⎯ disposition, like sale or conveyance, of allotment ⎯ null and void

The Supreme Court made a decision declaring null and void a purported transfer by the first appellant to the second appellant of a town and a tax allotment, and made a declaration entitling the late Viliami Fetukutuku-he-tau Kaufusi to make an election pursuant to the provisions of the Land Act to take the allotment in question as the heir of the first appellant. The appellants appealed that decision.

Held:

1. Any attempt to bind Viliami Kaufusi to a voluntary arrangement with his father of the kind alleged would encounter the difficulty that section 6 of the Land Act makes null and void a disposition “which purports to effect a voluntary conveyance [or] an out-and-out sale” of an allotment.

2. Section 82(c) of the Land Act gave him the inheritance, as the eldest son. Section 54 provided that upon the surrender the allotment devolved “immediately” upon him as the heir. Section 84 gave him, as a son, the right “to elect between the allotment already held by him” and the allotment surrendered by his father.

3. The appeal must be dismissed with costs.

Cases considered:

Hakeai v Minister of Lands [1996] Tonga LR 142 (CA)

Vailea v Sakalia (Court of Appeal, unreported, CA11/95, 31 May 1996)

Statutes considered:

Land Act Cap 132

Counsel for appellants: Mr Tu’utafaiva
Counsel for respondents: Mr Hola
Counsel for Minister of Lands: Ms Bloomfield

Judgment

This is an appeal from a decision of Lewis J (as he then was) declaring null and void a purported transfer by the first appellant to the second appellant of a town and a tax allotment, and making a declaration entitling the late Viliami Fetukutuku-he-tau Kaufusi to make an election pursuant to the provisions of the Land Act to take the allotment in question as the heir of the first appellant.

This Court has previously held, in Hakeai v Minister of Lands [1996] Tonga LR 142 (CA) and Vailea v Sakalia (Court of Appeal, unreported, CA11/95, 1 May 1996), that section 54 of the Land Act operates according to its terms upon the surrender of an allotment. By it, any allotment or any part of an allotment surrendered by the holder, with the consent of the Cabinet, shall, subject to the provisions of the Act, immediately devolve upon a person who would have been the heir if the holder had died. In a case where the heir is a son or grandson of the holder, section 84 entitles him to make an election between an allotment already possessed, which is of the same kind, and the allotment in question. As was pointed out in Vailea v Sakalia, “there is no provision in the Land Act for a person surrendering land to impose conditions to that surrender.” It follows that the eldest eligible heir is entitled subject to the provisions of the Land Act, upon a surrender. Nor, it was held, can a surrender be cancelled, at least in the absence of “significant mistake or fraudulent conduct causing the surrender”.

In the present case, the first appellant surrendered an allotment, apparently with a view to the eldest legitimate child of his second marriage obtaining title to it. However, the late Viliami Kaufusi was then alive and was his eldest legitimate son, by a prior marriage. Viliami Kaufusi had elected to surrender another allotment held by him in order that he should be able to take the allotment surrendered by his father. Nevertheless, the appellants’ plan succeeded at first, insofar as the Minister of Lands registered the second appellant as entitled to the allotment surrendered. But he did so on the basis of an application the correctness of which the second appellant had verified by oath, which falsely stated the second appellant was the heir, and omitted any appropriate reference to Viliami Kaufusi. The present proceeding was then initiated by Viliami Kaufusi, seeking the setting aside of the registration of the second appellant and an order enabling his own registration. There was no counterclaim to set aside the surrender effected by the father, the first appellant.

By the judgment appealed from, Viliami Kaufusi obtained in substance the relief that he sought.

At the hearing, a great deal of attention was given to a dispute to whether, following the death of the first appellant’s second wife, there had been a family meeting, during which the late Viliami Kaufusi had deferred to his father’s wishes in respect of the succession to the allotment. The appellants asserted there had been an understanding of this kind, while Viliami Kaufusi denied it strongly. The trial judge did not state expressly, which version he accepted on this issue, but he did make it clear that the second appellant’s evidence deserved little credit, since he had been prepared to swear falsely when applying for registration of the allotment. The first appellant was also involved in that application. Reading the judgment as a whole, it seems clear to us that his Honour was not prepared to find that Viliami Kaufusi had ever bound himself to renounce his inheritance. When the matter was debated at the hearing of the appeal, counsel for the appellant conceded that it was not suggested the meeting bound the son, but that it explained the action of Mo’ale [ie the second appellant].

Of course, any attempt to bind Viliami Kaufusi to a voluntary arrangement with his father of the kind alleged would encounter the difficulty that section 6 of the Land Act makes null and void a disposition “which purports to effect a voluntary conveyance [or] an out-and-out sale” of an allotment. Counsel doubtless had this in mind.

Once this concession was made, only one possible answer remained to the claim made by the late Viliami Kaufusi. Section 82(c) of the Land Act gave him the inheritance, as the eldest son. Section 54 provided that upon the surrender the allotment devolved “immediately” upon him as the heir. Section 84 gave him, as a son, the right “to elect between the allotment already held by him” and the allotment surrendered by his father. The one argument raised by counsel for the appellant was that section 84 should be read as subject to an implied proviso excluding an allotment already held by family inheritance from the category of allotments a son or grandson could elect to give up in favour of taking a further inheritance. But the section contains no such proviso, and we do not think the Court could possibly avoid its clear language by an implication of that kind. To do so would be to rewrite the section, not to interpret it. Accordingly, the appeal must be dismissed with costs.

It should be recorded that, Viliami Kaufusi having, died during the pendency of the appeal, the Court by consent appointed his three sons as representatives of him and his estate.