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Na'ati v Motu'apuaka [1998] TOLawRp 3; [1998] Tonga LR 19 (2 March 1998)

IN THE LAND COURT OF TONGA
Land Court, Nuku’alofa

L 3/91

Na’ati

v

Motu’apuaka

Lewis CJ
20, 21, 22, & 23 January, 3 February; 2 March 1998

Land — registration — alleged misrepresentation
Land — title — proprietory estoppel claimed

In 1945 the plaintiff accepted land and was told by the first defendant that he would be given the allotment. The plaintiff improved and cultivated the land. In 1979 the plaintiff went to Samoa and allowed the second defendant’s father to occupy the land until 1982. In 1982 the plaintiff instructed ‘Vili to occupy the land. The first defendant directed ‘Vili to leave and the second defendant’s father returned. In 1986 the second defendant attempted to register the land in his own name with the signature of the first defendant. The plaintiff discovered this and sought a conference with the Minister of Lands. The Minister instructed the second defendant to withdraw the application. However, in 1991 the succeeding Minister of Lands granted the ‘api to the second defendant. The defendants submitted that the plaintiff had not complied with the statutory requirements prescribed by the Land Act for obtaining title to the ‘api. The second defendant had title to the land. The plaintiff alleged that a misrepresentation was made to the Minister that the land was vacant or abandoned. The plaintiff also alleged that he was denied natural justice. The plaintiff further contended that the issue of proprietory estoppel existed.

Held:

1. The Land Act provides that land shall be granted to eligible subjects by the Minister of Lands. It is not a power possessed by an estateholder so estateholders may not make a grant to subjects. Therefore, the first defendant did not grant the land to the plaintiff in 1945. At no time had the plaintiff achieved good title to the ‘api in compliance with the provisions of the Land Act.

2. Second defendant’s title to the land must be seen as complete. The plaintiff had not demonstrated that a misrepresentation was made.

3. The plaintiff himself acknowledged his opportunity to put his case to both Ministers of Lands and he gave evidence that he did so. That brought an end to any submission of a denial of natural justice.

4. If proprietory estoppel existed it would mean that the Minister of Lands was bound by a promise to which he was never a party and importantly that he would be bound by promises of estateholders of the Kingdom. Such a proposition was untenable. Estateholders should follow the decisions of the Minister.

5. The plaintiff failed in his claim. There is no order as to costs.

Cases considered:

Kalaniuvalu v Free Wesleyan Church (No 2) [1995] Tonga LR 101

To’a v Veikune [1974 – 1980] II Tonga LR 107

Tokotaha v Minister of Lands (1958) 2 Tonga LR 159

Statutes considered:

Evidence Act Cap 15

Land Act Cap 132

Counsel for plaintiff: Manu Kaufusi
Counsel for first and second defendants: Laki Niu
Counsel for third defendant: ‘Alisi Taumoepeau

Judgment

The following narrative represents the facts as I find them to be in this Land Claim. The plaintiff has carried the burden of proof of his claim. His obligation has been to persuade this Court of the correctness of the claim.

In February 1945 the late Motu’apuaka, Estateholder of Te’ekiu told the plaintiff that he would be given the allotment Lot 34 (Te’ekiu) Block 80/87 the subject of this claim. The plaintiff occupied the ‘api and improved and cultivated it over many years. He grew coconut, mango, ifi and pandanus trees. He dug a well on the land.

Between 1945 and 1979 the plaintiff made approaches to the Estateholder the late Motu’apuaka asking permission to register the land in his own name. He probably visited Motu’apuaka on seven occasions. On each visit, his request was refused. In 1979 the plaintiff went to Samoa.

That year, 1979, by an agreement made between the wife of the plaintiff and father of the second defendant Tongia, the second defendant’s father was permitted to enter into occupation of the land. Once there, he grew crops. He complied with traditional obligations associated with the land due by the occupier to Motu’apuaka. He remained in occupation until 1982. That year the plaintiff instructed one “Vili from Fahefa” to occupy and farm the ‘api and the plaintiff directed the second defendant’s father to vacate the ‘api.

The late Motu’apuaka got wind of the entry of Vili from Fahefa on to the ‘api and directed him to leave. Vili left and the second defendant’s father resumed occupancy and husbandry of the ‘api.

Much of the evidence called on both sides here, would ordinarily be inadmissible on the basis that it offends the rule against hearsay created by section 88 of the Evidence Act Cap 15. However I accept the submissions of counsel that in Tofia cases in this jurisdiction and by parity of reasoning, in all claims determining title to land, an exception exists. The basis for the exception to the hearsay rule may be found in Kalaniuvalu v Free Wesleyan Church (No 2) [1995] Tonga LR 101 and in To’a v Veikune [1974 – 1980] II Tonga LR 107. I say no more about the admissibility question save that I admit the evidence in issue.

By application dated 19 June 1986 Manase Tongia, the second defendant, applied to the Minister to have the land registered in his own name. Motu’apuaka must be taken to have consented by virtue of his undisputed signature of consent appearing on the application. It bore the date 10 March 1986. The plaintiff discovered the attempt to register in late 1988 or in early 1989.

On discovering the attempt, the plaintiff sought conference with the Minister. There followed a series of meetings between the plaintiff, the second and third defendants, and the Minister. The evidence of the witnesses as to the composition and precise timing of the meetings is irreconcilable as between the witnesses. Doing the best I can from the evidence I find that on balance it is probable that there were two meetings at which the plaintiff and the second defendant’s father were present.

The first meeting was probably in 1989 when Hon. Tuita was the Minister of Lands. The outcome of that meeting was that Hon. Tuita directed the second defendant’s father to withdraw his application for registration of the land in issue. There is an entry by one Paula Moala duly noted on the application form Exhibits D1 and D2.

“I am told by the acting Minister of Lands to withhold the Registration - Manase Tongia is to surrender the ‘api so that a 100 new grant can be made.”

Manase Tongia took no action. A second meeting took place in early 1991 at the instigation of the plaintiff. By then a new Minister of Lands had taken the Portfolio, one Ma’afu Tupou. At this second meeting, the plaintiff, the second defendant’s father and the Town Officer were present. The Minister announced that he would uphold the decision of his predecessor Hon. Tuita.

Notwithstanding all that had passed before and for reasons which have not been discovered at this hearing the ‘api was granted to the second defendant by the same Minister, Hon. Ma’afu Tupou on 9 January 1991.

The ‘api was registered in the name of the second defendant on 27 February 1991.

These being the material facts as I find them to be I turn now to a consideration of the legal principles which apply.

The three defendants join in submitting that the plaintiff has not complied with the statutory requirements prescribed by the Land Act Cap 132 for obtaining title to the ‘api. It is argued that the plaintiff has not received a Deed of Grant and accordingly no registration of the ‘api in his name.

The Land Act (hereinafter “the Act”), s 19 provides that land shall be “granted” to eligible subjects by the Minister of Lands. That power is reserved for the Minister since he represents the Crown in all matters pertaining to land in the Kingdom. It is not a power possessed by an estateholder. An estateholder may not make a grant to subjects. The Act provides in s 34(1):

“the Holder of an hereditary estate shall admit into possession any person who has been granted an allotment on his estate by the Minister ...”

Therefore Motu’apuaka did not grant the land to the plaintiff in 1945. The best that can be said of the 1945 transaction is that he was evincing his consent to the grant of the ‘api to the plaintiff - no more than that. As to the repeated requests of the plaintiff to the late Motu’apuaka for the estateholder’s consent to a grant in the following years they were all consistently refused. Perhaps it was the consistent refusals which deterred the plaintiff from applying directly to the Minister for a grant and registration. The second defendant’s father was certainly not deterred.

Since there was no grant of allotment by the Minister to the plaintiff, there could logically be no registration of the grant provided for in ss 120 and 121 of the Act. Therefore I find that at no time has the plaintiff achieved good title to the ‘api in question in compliance with the provisions of the Act.

What of the second defendant? The witness Samisoni Pone, Registrar of Land testified that an application for the land in question was received on 19 June 1986. It bore the consent of the estateholder Motu’apuaka as evidenced by Motu’apuaka’s signature affixed on 10 March 1986.

Pone testified that the Land Office Records show (as I find they do show) that the ‘api was registered in the name of the second defendant Manase Tongia on 27 January 1991. A Deed of Grant issued.

In Tokotaha v Minister of Lands (1958) 2 Tonga LR 159 at 160 Hammet CJ said:

“For the title of an allotment Holder to be complete it is necessary for him to be issued with a deed of grant and for the deed of grant to be registered.”

In the absence of fraud or misrepresentation, the second defendant’s title to the land must be seen as being complete. There is a legitimate grant and there is registration from the whole of the evidence before this Court of that grant. The plaintiff has no title, merely the repeated promise of title by the late Motu’apuaka. However in this case the plaintiff does allege fraud.

The plaintiff’s allegation appears in para 12 of the statement of claim. There the plaintiff alleges that a misrepresentation was made to the Minister by the second defendant and his father that the land was vacant or abandoned. In my view, the plaintiff has not demonstrated that the misrepresentation was made. The evidence does not support the allegation in para 12(d). Para 12(e) and (f), similarly, the allegations are not borne out by the evidence on the plaintiff’s case or at all.

I turn to the claim that the plaintiff was denied natural justice in that he was denied the right to state his case to the Minister. The plaintiff was asked about it in cross examination at page 6 of the transcript by Mrs Taumoepeau.

“Q: on both times of your meetings with the Minister did you explain or tell them everything you want of the ‘api?

A: Yes

Q: So after both meetings with the Ministers you were satisfied that both Ministers were aware of the situation?

A: Yes.”

The frustration and confusion of the plaintiff can well be imagined when, after the second meeting and following the assurances he had been given by both Ministers and the Estateholder the ‘api was registered in the name of the second defendant. However the plaintiff’s acknowledgement of his opportunity to put his case to both Ministers and his evidence that he did so must bring an end to any submission of a denial of natural justice.

The plaintiff has submitted the issue of proprietory estoppel exists. Equity developed as a response to the need for the law to mitigate some harsh consequences of the application of some principles of the common law.

Estoppel is defined in the Evidence Act Cap 15, s 103(2):

“If a person, either in express terms or by conduct, makes a representation to another of the existence of a certain state of facts which he intends to be acted upon in a certain way, and it is acted upon in that way in the belief of the existence of such a state of facts to the damage of him who believes and acts, the first is estopped from denying the existence of such a state of facts.”

Here the plaintiff submits that Motu’apuaka promised in 1945 that the plaintiff could have the land, that the promise was a representation within the meaning of s 103(2), and that the first defendant is precluded from denying his promise of 1945.

Were the submission so it would mean that the Minister of Lands is bound by a promise to which he was never a party and importantly that he would be bound by promises of estateholders of the Kingdom. Such a proposition is untenable. Section 34 of the Land Act suggests the opposite (with certain provisos) is the case, that is, that estateholders should follow the decisions of the Minister.

I am driven to the conclusion that the plaintiff must fail in this claim. As so often is the case in this jurisdiction there is an apparent injustice wrought by the outcome here but that must be seen against the need for the application of necessary and strict compliance with the provisions of the Act relating to application and grant and finally, registration.

The plaintiff’s claim is dismissed. The justice of this case it seems to me would dictate that I make no order as to costs.