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'Ameleki v Nai [2000] TOLawRp 60; [2000] Tonga LR 247 (29 May 2000)

IN THE LAND COURT OF TONGA

'Ameleki

v

Nai

Land Court, Nuku'alofa
Finnigan J
L 228/99

21, 24, 25, 28 January, 22 February 2000; 29 May 2000

Land law — later registration ordered to be set aside in favour of earlier one — equitable considerations

Land law — failure to consult — did not make registration invalid

The plaintiff claimed that he was entitled to be registered as holder of a town allotment in Ma'ufanga, which he with his mother had occupied since 1971. On 14 September 1994 the plaintiff was registered and a deed of grant was issued to him. Lupeti Vi and the first defendant then lodged their application form, which the estate holder had signed on the same day that the plaintiff's deed of grant was issued. They later enquired about progress of their application for registration of the land in the first defendant's name. Immediately the Minister accepted their application. He cancelled the registration of the plaintiff and on 22 September he issued a new deed of grant to the first defendant. The first defendant had the support of the second and third defendants (the Minister of Lands and the estate holder).

Held:

1. The registration of the first defendant was ordered to be set aside in favour of the registration for the plaintiff on three grounds. The first ground was an inequitable breach by the estate holder of his assurance to the plaintiff; the second ground was that there was an inequitable breach of assurance by the Minister; the third ground was that there was a subsequent error of law made by the Minister when he purported to cancel the plaintiff's registration.

2. The Court was not prepared to hold that a failure to consult (s 8), if that occurred, made registration invalid. Nothing was provided by the Act as a consequence of a failure to consult, particularly, there was no provision, which could easily have been made, that such registration would be void without consultation.

3. The Court directed the Minister of Lands to re issue the deed of grant for Lot 1 on Plan 1509 that was initially issued on 14 September 1994, Volume 334 Folio 65, and to cancel the deed of grant that was issued on 23 September 1994, Volume 334 Folio 68. Costs in the action were awarded to the plaintiff against each of the defendants, to be agreed or taxed.

Cases considered:

Havea v Tu'i'afitu [1974– 1980] Tonga LR 55

Motuliki v Pohahau (Land Court, L 670/97, 12 May 1999, Finnigan J)

Taufa v Kupu [1996] Tonga LR 3

Statutes considered:

Evidence Act (Cap 15)

Land Act (Cap 132)

Counsel for plaintiff: Mrs Vaihu
Counsel for first and third defendants: Ms Tonga
Counsel for second defendant: Mr Kefu

Judgment

The plaintiff claims that he is entitled to be registered as holder of a town allotment in Ma'ufanga, which he with his mother have occupied since 1971. He had been the registered holder, but the Minister cancelled his grant. The first defendant is the registered holder, and has the support of the second and third defendants, who are the Minister of Lands and the estate holder.

The Facts

For the plaintiff, evidence was given by the plaintiff himself, the registrar of lands Samisoni Pone, Kisione Tanaki Kula the Ma'ufanga town officer, and Kula 'Etu'afa, a.k.a. Lolesio Havili who is matapule of the Hon Fakafanua. The first defendant gave evidence, as did Paelata Vi Nai his wife, the third defendant Hon Fakafanua, Paea-e-Lone Maile, Lupeti Vi, and the Hon 'Ahome'e who is the land representative of the noble Tungi. In addition, pursuant to the Evidence Act (Cap 15), s 89(1)(iv), the Court admitted by consent the Judge's notes of the evidence of Valamotu Vi, given at a hearing about the present claim in February 1997.

There were some conflicts in the evidence, which have had to be resolved. Where necessary, the following narrative will set out and then resolve the conflicts, and if it is not otherwise stated, the findings that are set out here are what the Court has accepted and finds proved in the evidence. Some of the conflicts are not addressed, as unnecessary for decision of the competing claims to the allotment.

In or about 1971, land was required by the government for the police college at Kolofo'ou. The people who were living on that land were moved onto land in Ma'ufanga. The estate holder of that land was and is Hon Fakafanua. A new village came into being. This was at Houmakelikao. The first people to be given the allotment in issue were Sione and Valamotu Vi. They had two children, Pita being the older son. Like their neighbours, they did not register as the holders, but they were known to Hon Fakafanua the estate holder, who accepted them as the occupiers.

According to Hon Fakafanua, all of the land in Houmakelikao is now occupied, but none of the other occupiers have become registered. He said many of them are in Ha'apai and Vava'u or are overseas, but the allotments are theirs. He agreed that the only person with a registered grant of an allotment in Houmakelikao is the first defendant Henele Nai.
The plaintiff was another of those who moved to Houmakelikao from Longolongo. For a time he had lived there with his sister and her husband, but when they were required to move Valamotu Vi allowed their allotment for the use of the plaintiff and his mother, saying that her children did not want to live at Houmakelikao. She stated in her evidence that she allowed this because she could not take care of both this and another allotment. She said also that her son Pita had his own lot. That was in 1971, and the plaintiff lived there with his mother till she died in 1990, and lives there still, alone. He has no family.

When Sione and Valamotu Vi first moved onto the land, in 1968, they put on it a hut that had been on their land at Kolofo'ou, and that work was done by their nephew Lupeti Vi with some of his school friends. Sione and Valamotu never lived on the allotment. Sione died in 1972. When Valamotu went to Australia in 1988, she authorised Lupeti to look after it, and he visited it on weekends. Between 1968 and 1973 he personally had looked after it, and visited it to see that the occupiers kept it weeded and tidy. He authorised occupation by a lady 'Ana Kupu (or Kutu) and her son, and was aware that in late 1973 or 1974 an old woman named Moli from Ha'apai (who was the plaintiff's mother) was living there, for the education of her grandchildren. He later found out that the plaintiff was living there.

Valamotu also knew he was living there, she stated in her evidence that he had come because she had allowed his mother to live there. In 1984 Lupeti sent building materials, sand aggregate and blocks to the allotment, intending to build. However, he had to leave Tonga for training and when his cousin asked for the materials he had to let it go and they were removed. The plaintiff was aware of this, as he was living there at the time, though he took no part in it.

When Valamotu Vi went to Australia she told Lupeti, her nephew, that she would like to give the allotment to him, but he told her he had one. He spoke with his father and it was agreed his sister Paelata should have it. Valamotu Vi and her eldest son Pita agreed with this proposal and in 1994 a letter was written surrendering the land to Henele Nai the first defendant, who is Paelata's husband. Pita Vi signed the letter as heir. Lupeti and Henele took the letter to Hon Fakafanua, who signed the consent on their application, and said the land would be registered as Henele's.

In the intervening years, the plaintiff had carried out village obligations, and in particular has been a frequent visitor to the home of Hon Fakafanua. He says he is a relative of Hon Fakafanua's wife, and is known to both of them. His frequent visits have sometimes been for the work of doing the laundry. He visited their home several times as well, he said about 8 times, for the purpose of obtaining registered title to the allotment. He did this because there were people coming to the allotment and he felt the need to ensure that he was entitled to it. He took with him on those occasions an application form for a grant of the allotment, which required the signature of the estate holder. He was not able to see Hon Fakafanua on each occasion, but when he did Hon Fakafanua did not sign the form. Instead, he told the plaintiff each time to go and stay on the land, because it was he who was taking care of it. He said, "Go back to the allotment and stay there." On one occasion, Hon Fakafanua's wife said the same thing to him. On one occasion Hon Fakafanua told him to go to the town officer and tell him to do the work to the allotment, and that whoever was named by the town officer would be the person to whom Hon Fakafanua would give the allotment.

Hon Fakafanua explained this remark in his evidence. He said that he did send applicants to the town officer, for the purpose of confirming the allotment and confirming that the particular applicant did have a house on it. He said that in the present case he did not do so, and that it was not necessary for him to do that because he knew the allotment and he knew Valamotu Vi. However, what the Hon Fakafanua said might have been true of the application made by the first defendant. From observation of these two witnesses and the town officer, it seems clear that what the plaintiff described did occur. Hon Fakafanua stated also that he had no memory of any visits by the plaintiff, and did not know him, but the evidence outweighs his denials.

The town officer stated that he had no authority over the land of the estate holder, and had been given none. Some applications to register occupied land in Ma'ufanga he said were approved by the estate holder, others are postponed. However, when Hon Fakafanua sends people to him he said he signs application forms under the estate holder's signature. He does this at his residence. He said he does this only when people are sent to him by the estate holder, and that some applicants had their forms signed by Hon Fakafanua without their being sent to him. He said he has often signed for people and they took the forms back to Hon Fakafanua for him to sign. He said he did so for the plaintiff when he was sent to him. He said he has no relationship with the estate holder and that he leaves entirely to him what decision is made. It was not for him to assign allotments, he said. Neither has he ever been asked to ascertain who lives on a particular allotment. He said that the reason that Hon Fakafanua sent people with their forms for him to sign was so he could confirm that an applicant was fulfilling his obligations in the village. He said that if he signed, the Hon Fakafanua would trust him and accept his signature and grant the allotment to that person. He said that he did not sign as a witness. On other occasions when Hon Fakafanua asked his opinion he would make a suggestion, but Hon Fakafanua would make up his own mind.

When the plaintiff went to the town officer, he took the form with him and told the town officer that he had taken it many times to Hon Fakafanua, but Hon Fakafanua had not signed it. He said that Hon Fakafanua had told him to bring the form to the town officer and that the allotment would be allocated according to the town officer's recommendation. The town officer signed it and, at the plaintiff's insistence, they went together to see Hon Fakafanua.

They went about three times. On one occasion the plaintiff spoke with Hon Fakafanua, while the town officer waited. The plaintiff came away with the form still unsigned, but told the town officer that Hon Fakafanua had again advised him to return and stay on the allotment. The town officer had not heard the estate holder say that, but he did hear the estate holder's wife say to the plaintiff not to worry, but to go and live on this piece of land because it was his. This made him ask the plaintiff what was his relationship with that woman, and the plaintiff said she was his aunt. The town officer said in evidence that before this he had known that it was the allotment of Sione and Valamotu Vi, and that they had moved overseas. He said that the plaintiff had lived on it since before the town officer arrived there in 1975, but he did not know how the plaintiff came to be the occupier.

After this, the plaintiff then took the form to the Minister. He told the Minister of the above events. The Minister said that he would go and see Hon Fakafanua. After that the plaintiff was told the Minister had approved the application for registration. On 14 September 1994 the plaintiff was registered and a deed of grant was issued to him.
Lupeti Vi and the first defendant then lodged their application form, which the estate holder had signed on the same day that the plaintiffs deed of grant was issued. They later enquired about progress of their application for registration of the land in Henele's name. Immediately the Minister accepted their application. He cancelled the registration of the plaintiff and on 22 September he issued a new deed of grant to the first defendant.
From the evidence of the relevant witnesses, I accept that what I have set out above is the true version of events so far.

It is important to mention the evidence of Hon 'Ahome'e. The first defendant comes from Fua'amotu, which is on Tungi's estate. He lives there, on an allotment that belongs to his uncle, which will be inherited by the eldest son, his cousin. In 1994 he asked Hon 'Ahome'e in person and in a letter whether there was an allotment on that estate at Fua'amotu for which he could apply. He has not made any application. Hon 'Ahome'e told him that there were no allotments available. Many of the allotments at Fua'amotu are not registered, but the occupants are regarded as the holders, and the land is held for them.

The first defendant's evidence was that there is no land available for him on the estate of Tungi. However, after hearing the evidence of 'Ahome'e, I am not prepared to accept for the purpose of this case that this is so. I am not satisfied that his enquiry has extended to the whole estate of Tungi. Even if it had, I am satisfied he has not attempted to obtain his entitlement by making an application.

Comments

If it were established that he, first, had applied and, second, had found there is no land available for him on the estate of Tungi, then he does still have legal rights. He is not prevented by s 48 of the Land Act from holding a town allotment on Hon Fakafanua's estate, subject to a grant of such allotment to him that complies with all the terms of the Act.

However, his rights are governed by s 50. This provides, at (a) and (b), that first, he must apply, and then any allotment for him shall come from the hereditary estate where he lives or if none is available there then from another of Tungi's estates. Hon 'Ahome'e said the estates of Tungi were at Fua'amotu and elsewhere, and that is confirmed by Schedule I of the Land Act. They extend beyond Fua'amotu but the evidence of 'Ahome'e was of an enquiry about Fua'amotu only.

I find that the first defendant has not exhausted his rights under (a) and (b). Counsel for the plaintiff, Mrs Vaihu, takes this point in her submissions.

But even if he had done so, and if he had then the right to a grant of land on the estate of Hon Fakafanua under s 50(c), he would still be in conflict with the plaintiff.

The plaintiff has the same rights, and his claim under the Land Act to the allotment on Hon Fakafanua's estate is a stronger claim, under s 50(a). He is entitled to have his allotment out of land that is available for allotments on the estate where he is lawfully residing. Just as the first defendant has a first right to available land on Tungi's estate, so the plaintiff has a first right to available land on Hon Fakafanua's estate. The land on which the plaintiff is residing was available when he made his application. This gives him a strong claim to that land under s 50(a). Against that, it is not proved that there was at the time of the first defendant's application no land available on the estate of Tungi where the first defendant resides, so that he could have had land granted to him outside Fua'amotu under s 50 (b).

So far as Fua'amotu itself is concerned, he was told by Hon 'Ahome'e that there is no land available there because the land there is already either granted to other people, or is said to be held for people who are said to occupy it and could be granted it if they apply for it under s 50(a). That decision is for the Minister to make. To obtain that decision, the defendant must first apply. For myself, I think it is possible that the Minister might give priority under s 50(a) of the Land Act to a claim by one of the latter class of people to a grant of the land he occupies in Fua'amotu. But that would be only if the person who actually resides on that land were also to apply, because only then would the occupant be entitled to any rights under the Act in competition with the first defendant. However, each application will be judged on its own merits. Under s 50(a) and (b) the first defendant has his rights to an allotment, and the first defendant cannot be kept out of his rights by another person merely by reason of that person has long occupied the land while that person slept on his rights. Meanwhile it seems to me that the first defendant cannot establish any right to any land on the Fakafanua estates until is first established to the satisfaction of the Minister there is no land available for allotments on the Tungi estates.

His application for a particular allotment on another noble's estate should not succeed when a person with a s 50(a) right for land already occupies it, and it is not shown that he has exhausted his own rights under s 50 (a) and (b).

On the other hand, the Minister has readily registered him and is prepared to confirm the issue of a grant for him on the estates of Hon Fakafanua, where he does not reside and which the Minister knows is occupied by another. It may well be that were his application to be considered under s 50 (a) or (b) then the Minister might allocate him some land on the estate of Tungi, where he does reside. The Minister has already (but wrongly, I find, in the circumstances of the present case) acted in the present case on the footing that occupation of an allotment by another does not by itself destroy the legal rights of an applicant for an allotment under the Act. In different circumstances it could be right for him to do so.

Had the first defendant applied for land at any time after turning 16 (s 43), then the provisions of s 50 would immediately have come into effect for him and his right to an allotment would have crystallised. From that time on he would have had a right to a search by the Minister for an allotment for him. This also is a point taken by Mrs Vaihu for the plaintiff.

Part of the first defendant's aim in evidence has been to establish that the land has not been occupied by the plaintiff at all, but has been occupied by himself or somebody whose occupation gives him a claim to the allotment, i.e. Valamotu Vi. This is what his evidence has been direct at doing. From the evidence however it is clear that the plaintiff was residing there, and had been for over 20 years before this dispute arose.

It is necessary now to mention the law about the agreement that the Vi family made about who will have the land, for which there was no registered holder. There is no recognition in the law for whatever they may decide among themselves. Sione and Valamotu Vi took no steps to establish themselves as landholders under Part IV of the Act, which includes s 50. Valamotu stated she could not take care of this and another allotment. Perhaps Sione already had one. If so, he was excluded from title to this one by s 48. Sione died in 1972, and Valamotu left the country in 1988. Pita Vi was not legally the heir to the land. Lupeti Vi made no application for it. He did not reside on it. His sister has no standing under the Act to apply for it. This family has no right at law to decide that it will be granted to the husband of Paelata Nai so that she and her children will have the benefit of it. There was no legal force in the "surrender" letter that was written to Hon Fakafanua. The whole transaction in any event may have been nullified by s6.

I turn now to consider the registration of the plaintiff as landholder. I am aware that the Minister has already twice reconsidered the matter under directions from the Court, and that on both occasions the Minister has confirmed the revocation of the grant to the plaintiff and a grant to the first defendant. Those reconsiderations have evidentiary weight and value, but they cannot dictate the decision which the Court must make, and which only the Court can make for itself.

It was the plaintiff who was first registered as the holder of the allotment. The primary issue is whether the plaintiff was validly granted this allotment, according to the Land Act. If the grant was valid, then it can still be revoked, if the requirements of equity (under which is included a mistake of law) give the first defendant a stronger claim to legal title. If the grant was not valid, then legal title is with the first defendant, so long as his grant was a valid grant. The decision is one of law, to be made according to the provisions of the Land Act. The application of equity can be only limited, and the principles are clearly stated in the cases.

Here one must go back to fundamental principles. These are stated in the Act, and nowhere else, for the Act is the code for land. It provides at s 7 a mandatory entitlement for every male Tongan subject by birth, once application is made to the Minister, and subject only to the provisions of the Act. At s 8 it provides that, subject only to the surrender provisions, the grant to an applicant lawfully residing on an hereditary estate shall be from that hereditary estate, provided that there has first been consultation with the estate holder. Part IV Division 1, particularly but not only at Ss 43 & 50 reinforces that mandatory entitlement to land from a hereditary estate if land is available. Application must be made to the Minister, using the prescribed form, with birth certificate and the prescribed fees. Under Part VII, Division II it is the Minister who grants the allotment, and must register the grant and deliver a copy of the deed to the holder. The Act is clear, the Minister is responsible to the Cabinet for what he does under the Act.

The rights of the tofi'a holder in this matter are limited. They are provided generally at Part III Division I, ss 30 - 3.6. At s 8 the Act provides that land shall not be granted as a tax or town allotment until there has been prior consultation with the hereditary estate holder. Then s 34(2) provides that before granting a tax allotment out of an hereditary estate, the Minister shall consult the holder thereof and hear any objections he may make, but if they fail to agree the Minister "shall nevertheless grant the land as a tax allotment...". That does not apply to the present case, but it is a useful guide. Form 9, the application form under s 43 for an allotment, contains provision for the tofi'a holder to sign a statement agreeing to the grant of the allotment applied for, and declaring that there is no impediment to prejudice the grant. That signature is not mandatory.

The Second Defendant

At the end of the plaintiff's case, Mr Kefu, counsel for the Minister, moved for dismissal from the action on the ground that the evidence against him was insufficient to require an answer. After a question from the Court he accepted that the Minister was a necessary party to the case, and would be the subject of an order if the plaintiff's claim were upheld. The Court also pointed out that no remedies were sought against the Minister. Mr Kefu amended his application and sought leave to remain in the proceedings and abide the outcome. There was no objection to this course from counsel for the plaintiff, who accepted that the Minister should remain a party and abide the outcome.

I made an order that there was no claim or sufficient evidence for an award of any punitive remedy against the second defendant, and gave leave to counsel to remain silent thereafter and abide the outcome. Counsel sought costs for the second defendant, but I ruled that was premature and the issue was reserved for later submissions, if necessary.

The Submissions

The submissions of Mrs Vaihu for the plaintiff are reflected in what I have already said. Ms Tonga, for the first and third defendants, has submitted that the first defendant has a prior right because of the "established title" of the Vi family to the allotment. This title arose in her submission from the facts that the land was "allocated" to Sione and Valamotu Vi in 1967 by the government and the estate holder, and the Vi family erected its house on the allotment and looked after it, visiting it from time to time. As well, they say they carried out the village obligations that went with the allotment.

Title to land cannot be established title until it is established under the Land Act. As for village obligations, the evidence does not establish that either one of the parties carried out village obligations to the exclusion of the other, so little can be built on that fact. I am however satisfied that the plaintiff, who lived there for many years, did carry out his village obligations as he and his witnesses stated that he did. "Allocation" of the land to any person is of little significance at law if it is not done in accordance with the Act. The allotment was not allocated until it was granted, in accordance with the Act, by the Minister of Lands, upon an application by a male Tongan person over 16 years, made in the prescribed way. It was not the land of the Vi family, it was the land of the tofi'a holder, occupied by whoever lived on it. The evidence establishes that some members of the Vi family thought that the allotment was reserved for them, even though none of them had lived on it, and that they had the right to give permission for others to occupy it from time to time. They thought that Pita Vi was the heir to it, and that it was for them to surrender to whomever they selected. This is not the law.

Ms Tonga submitted it had not been proved that the third defendant, the tofi'a holder, had promised the allotment to the plaintiff. She stated, rightly, that only the plaintiff claimed that, and the third defendant denied it. After observing the witnesses giving their evidence, and bearing in mind the evidence of Kisione Tanaki Kula the Ma'ufanga town officer, I say without hesitation that I accept the evidence of the plaintiff and reject the denial of the third defendant. I formed this conclusion on the evidence as stated by the witnesses. It is appropriate however, to note that there is at least one striking similarity between the evidence of the plaintiff about his visits to the tofi'a holder, the third defendant in the present case, and that given before me by the plaintiff in Motuliki v Pohahau (Land Court, L 670/97, 12 May 1999, Finnigan J). In both of these cases, the tofi'a holder reassured the plaintiff and said "go and stay at your allotment", but signed Form 9 for another applicant.

In the present case, those words by the tofi'a holder were a response to the plaintiff's request for his signature on the Form 9 for his application. Instead of signing and instead of refusing, he sent the plaintiff away, saying that he should stay on the allotment. This was an assurance, but the third defendant then consented to the registration of another, later, applicant. In my clear view this action by the estate holder comes within the principle appearing in the judgment of Havea v Tu'i'afitu [1974 – 1980] Tonga LR 55. If a person establishes that a grant of an allotment was made in breach of a clear promise by the Minister or the estate holder, then equity may set the registration aside.

My Findings

In my view there are three reasons for setting the registration aside in the present case. First, in applying the equity principle, I will direct that the registration of the first defendant be set aside in favour of the registration for the plaintiff on the ground of an inequitable breach by the estate holder of his assurance to the plaintiff.

Second, I would also set it aside because of an inequitable breach of assurance by the Minister. This occurred after the plaintiff took the form to the Minister and told the Minister of his dealings with the estate holder. The Minister told him that he would go and see Hon Fakafanua. After that the plaintiff was told the Minister had approved the application for registration. The Minister then registered the plaintiff and issued to him a deed of grant. These actions clearly included an assurance to the plaintiff that the Minister had carried out his duties, and had lawfully granted the allotment to him. As it happened, he had.

Third, on the evidence as it stands, there is a stronger ground available, i.e. a subsequent error of law made by the Minister when he purported to cancel the plaintiff's registration. If the evidence is complete, he failed to ascertain, before granting the allotment to the first defendant, whether there was other land available for the first defendant on the estate of Tungi which he was bound by s 50 to do. His failure was an error of law. It is equity that allows me to intervene and correct that error.

I make these findings about the Minister without seeking further submissions from counsel for the Minister. This is first because it was by his own motion that he withdrew from active participation in the hearing and second because there is no detriment to the Minister in any event from my findings about his failures. He is required only to take action, and that outcome arises in any event from my first finding alone. The issue of costs raised by Mr Kefu is governed by the general rule and will follow the event.

Further Comments on the Submissions

I accept the submission of plaintiff's counsel that the plaintiff was lawfully residing on the allotment when he applied for registration. This is not because of any permission that the Vi family may have purported to give, but rather because of the permission given the tofi'a holder, the third defendant. I hold that he was entitled to registration and a deed of grant under s 50(a) of the Act.

Ms Tonga has submitted that when the Minister purported to register the plaintiff there was no prior consultation with the estate holder, and thus the registration was in breach of s 8. The consultation is mandatory.

In the present case, there has been no signature by the estate holder, so prima facie the Minister proceeded without the consent and certificate of the estate holder. There is other evidence, in a letter written by the Minister on 19 September 1994. There the Minister said that "... the estate holder did not offer this allotment", and the third defendant stated that there was no contact made to him by the Minister. I have residual doubts about that denial, and the words in the Minister's letter do not resolve them, but I do not need to resolve that factual issue.

This is because I am not prepared to hold that a failure to consult, if that occurs, makes registration invalid. Nothing is provided by the Act as a consequence of a failure to consult, particularly, there is no provision, which could easily have been made, that such registration would be void without consultation. As well, there is the corresponding provision in s 34(2), about consultation before granting of tax allotments. I said above that this is a useful guide. The Act does go further there, but not to make registration invalid. Rather, it provides for agreement, but on failure to agree then there will be registration in any event, with final review by the Court if a challenge is made within 3 months.

I do uphold the submission of Ms Tonga that the signature of the town officer Kisione Tanaki Kula in the place provided for the tofi'a holder to sign can have no legal effect. However, I hold that the signature of the tofi'a holder on the statement for him to sign in Form 9 is not a necessary pre-condition to a valid grant by the Minister of an allotment on that tofi'a holder's estate. As well, in the present case it is clear on the balance of probabilities from the evidence I heard that the estate holder, in exchange for his signature, was waiting for a gift from the plaintiff. The plaintiff did not offer a gift but the first defendant gave one. The first defendant denied this, but Hon Fakafanua did not deny it. No explanation of the events is necessary, but this it seems to me explains all that occurred.

Ms Tonga has submitted that the Minister made a valid grant to the first defendant on 15 April 1997. This was when he decided that the first defendant should hold the allotment after the Court remitted the matter to him for his consideration. The then Minister, Hon Fakafanua, was also the estate holder. She also submits that the second decision, by the next Minister, was likewise a valid Ministerial decision in the first defendant's favour. These submissions however, about the legal force of the subsequent Ministerial decisions, can be upheld only if the Court first decides that the initial grant to the plaintiff was invalid. If it was valid, the Minister was functus and had no further powers to change the legal situation that he had created by making a valid grant. In my view the initial grant was unobjectionable, and was valid under s 50(a), so could not subsequently be cancelled by the Minister.

Conclusion

I have found that the Court applied the same principle in Taufa v Kupu [1996] Tonga LR 3 to which Mrs Vaihu referred me (from p 8):

"In a situation like the present - one where two contenders for title present for registration on the same allotment, the applicants are to be governed by s 50 of the Land Act. They must be judged according to their merits in an even-handed way. ..."

For the three reasons I have stated above I decide the application of the plaintiff in the statement of claim dated 5 October 1998, by making an order setting aside the registration of the first defendant as grantee of the allotment in issue. I direct the Minister of Lands to re issue the deed of grant for Lot 1 on Plan 1509 that was initially issued on 14 September 1994, Volume 334 Folio 65, and cancel the deed of grant that was issued on 23 September 1994, Volume 334 Folio 68.

Costs in the action are awarded to the plaintiff against each of the defendants, to be agreed or taxed.