IN THE COURT OF APPEAL OF TONGA

Tafa

v

Viau anors

Court of Appeal, Nuku'alofa
Burchett, Salmon, and Moore JJ 
AC 3/2006

11 August 2006; 16 August 2006 

Land law – deed of grant – land lawfully occupied therefore unavailable – mistake – appeal dismissed 

For the facts and the decision of the Land Court, see Tafa v Viau anors [2006] Tonga LR 114. The Land Court found that the Minister of Lands had been required by law to have regard to whether or not the land was available for grant before making a grant; that in fact it was not so available because Sione Finau and his family were in lawful occupation of it and had built a house on it; and that by exercising his discretion upon the mistaken assumption "that the land in question was vacant" the Minister had made a mistake on an essential issue, or, at any rate, had failed to take into account a material fact, namely, that the land was lawfully occupied by others who had built a house on it. Therefore orders were made cancelling the registration of the deed of grant and dismissing the appellant's claim for an order evicting the respondents. The appellants appealed to the Court of Appeal. 

Held: 

1. Two aspects of the Minister's functions and duties combine to require him to take steps, which must be reasonable in the particular circumstances, to ascertain whether the land was in fact not subject to some other claim that might be an impediment to a grant or make it unavailable. In the first place, he could not properly sign a declaration on behalf of the Crown that there was no impediment if the truth was that he simply did not know because he made no sufficient inquiry. In the second place, the administrative decision to make the particular grant could not properly be made in the absence of the same inquiry in any case where the Minister did not actually know whether the land was available, or whether any competing claim had been appropriately resolved. The Minister did not have to make inquiries personally. He may rely on his officers, but if he did so, and they failed to perform the task properly, a person affected may have a remedy for that failure as if it were a failure of the Minister. 

2. The Court concluded that reasonable steps were not taken by or on behalf of the Minister to acquaint him with the relevant information, so that a most material factor, the occupation of the land by the respondents together with the erection of a house on it, was not taken into account. The appeal must therefore be dismissed and the respondents (other than the Minister) must have their costs against the appellant. The orders made below, while upheld, should be varied to the extent indicated.

3. The dismissal of the appeal left the ultimate decision upon the question of the issue of a grant to the Minster. 

Cases considered: 
Daganayasi v Minister of Immigration [1980] 2 NZLR 130 
Devries v Australian National Railways Commission (1993) 177 CLR 472 
Fowler & Roderique v Attorney-General [1987] 2 NZLR 56 
Hakeai v Minister of Lands [1996] Tonga LR 142 
Jones v Dunkel (1959) 101 CLR 298 
Kioa v West (1985) 159 CLR 550 
Powell v Streatham Manor Nursing Home [1935] AC 243
Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 
Vai v 'Uliafu [1989] Tonga LR 56 
Watt or Thomas v Thomas [1947] AC 484 

Statutes considered: 
Land Act (Cap 132) 
Laws Consolidation Act 1988 

Counsel for appellant: Mr Fakahua 
Counsel for first and second defendants: Mr Niu 
Counsel for third respondent: Mr Sisifa

Judgment

[1] Important questions with respect to grants of allotments upon applications under s.43 of The Land Act (c.132), in particular in the case of Crown land, lie at the heart of this appeal. Those questions concern the consequences of a prior occupancy which is either known to an applicant to involve a competing claim, or in the light of facts he knew would reasonably be expected to do so, whereas the Minister of Lands is without either knowledge or notice of the situation, although inquiries, if made, would have revealed it, when he issues a grant upon the application. 

[2] The facts raising these questions may be recounted quite briefly. At the time of an application made by the appellant for the grant of an allotment of land forming part of the Crown estates, the first and second respondents (whom we shall call "the respondents", referring to the third respondent as "the Minister") were in lawful occupation of that land and residing in a substantial house they had built on the land. The land had been in the occupation of the grandmother and father of the second respondent and then of the father together with the respondents, who are husband and wife, for a period of twenty years. That occupation had begun when the then grantee of the tax allotment of which the present allotment forms part, one Tevita 'One'one Kamea (who will be referred to as 'One'one) invited the second respondent's grandmother, Hevaha, with her son, the second respondent's father Sione Finau, to a meeting with himself and his son and heir, one Mosese, to choose a piece of land from his allotment which he was going to subdivide. She did select an allotment, and it was marked out with boundary sticks. That was in 1985, and in the same year Sione Finau cleared the bush and began building a Tongan fale on the land, replaced in 1990 by a second house, made of plywood, and then, in 1992, by the present house.  

[3] 'One'one was referred to as Sione Finau's grandfather pursuant to what the Assessor below explained as a Tongan custom applicable to some indefinite relationships. Pursuant to this customary relationship, Sione Finau and his older sister used regularly to take food from their house to 'One'one. The relationship and their recognition of its obligations in this way explain 'One'one's decision to provide the allotment for Sione Finau's family, but we reject as without foundation the appellant's submission that 'One'one's actions demonstrated the existence of an unlawful "agreement for profit or benefit relating to the use or occupation" of part of his holding within s.13 of The Land Act. No bargain was suggested by the evidence. 

[4] 'One'one died in 1990, but between 1985 and his death both he and his heir Mosese assured Sione Finau that Mosese would have all the work done to have the allotment transferred to him, and Mosese referred to the allotment as belonging to Sione Finau. Sione Finau's family continued to live on the allotment in the successive houses he or they built there, with the approval of both 'One'one (during his lifetime) and Mosese, and the first sign of any problem came on 5 June 2004 when he received a letter from a solicitor (although that solicitor was not writing on behalf of the appellant) making a claim to the land. Sione Finau took the matter up with Mosese, who told him to go back and stay on the allotment because Mosese would go to the Lands and Survey Office and deal with it. 

[5] It was early in January 2005 that Sione Finau was confronted by the appellant, who had obtained on 29 November 2004 a registered deed of grant from the Minister of Lands pursuant to an application under s.43 of The Land Act. The respondents had had no notice of that application, although the appellant admitted in evidence that he knew early in 2004 of the occupation of the allotment and of Sione Finau's claim that it was his. That was before the appellant made his application later in the year. 

[6] Neither side called Mosese to give evidence. For the respondents, evidence was given that they could not find him before and at the time of the trial. The evidence on which the trial judge principally relied for the findings we have summarized was that of Sione Finau, whom his Honour expressly accepted "on all these matters", describing him as "a thoughtful and conscientious witness." The judge having seen and heard him, and believed him, very strong grounds would be required for us to reject his evidence without seeing or hearing him. An appellate court, as Lord Atkin pointed out in Powell v Streatham Manor Nursing Home [1935] AC 243 at 255 "must recognize the onus upon the appellant to satisfy it that the decision below is wrong; it must recognize the essential advantage of the trial judge in seeing the witnesses and watching their demeanour. In cases which turn on the conflicting testimony of witnesses and the belief to be reposed in them an appellate Court can never recapture the initial advantage of the judge who saw and believed." Using similar language, Lord Simonds in Watt or Thomas v Thomas [1947] AC 484 at 492 said: 

"I am satisfied that an appellate court having none of those advantages which the trial judge enjoyed of hearing and observing the witnesses, was not justified in concluding that he was so clearly wrong that their judgment of fact should be substituted for his." 

See also Devries v Australian National Railways Commission (1993) 177 CLR 472. 

[7] But counsel for the appellant urged the respondent's failure to call Mosese to confirm Sione Finau's evidence was a strong ground of appeal; and also asserted that the evidence of 'One'one's and Mosese's assurances to Sione Finau was hearsay. As to the failure to call Mosese, it seems to us the respondents' case necessarily involves the proposition that Mosese had deceived them. He had confirmed the promises of his father 'One'one and made similar promises himself, while at the same time surrendering the allotment he had received from his father (of which that occupied by the respondents was a part), not for the purpose of fulfilling those promises, but for the purpose of enabling others to obtain interests, and in particular with the consequence that the appellant was enabled to apply for a grant. These actions might fairly be described as surreptitious, being concealed from Sione Finau and the respondents. They were found as facts by the judge on clear evidence. In that situation, the respondents could not have been expected to call Mosese as a witness to confirm his own deception. Rather it was for the appellant to call Mosese, from whose actions he had benefited, if he wished to controvert the evidence of Sione Finau. The well known rule stated by the High Court of Australia in Jones v Dunkel (1959) 101 CLR 298 applies against a party only where the witness not called is a witness that party would have been expected to call. In any case, the judge accepted that the respondents were unable to find Mosese prior to the trial. As for the hearsay point, the evidence of the assurances was not hearsay; it was direct evidence of the basis on which the respondents came to be, and to continue, in occupation of the land.

[8] On these facts, the trial judge found that the Minister of Lands had been required by law to have regard to whether or not the land was available for grant (see s.50 of The Land Act) before making a grant; that in fact it was not so available because Sione Finau and his family were in lawful occupation of it and had built a house on it (see Vai v 'Uliafu [1989] Tonga LR 56 at 63-64 where Webster J (as he then was) held land "was not available..... because a house had been built on the land"); and that by exercising his discretion upon the mistaken assumption, as his counsel admitted he had done, " that the land in question was vacant" (of which, we note, he had no evidence) the Minister had made a mistake on an essential issue, or, at any rate, had failed to take into account a material fact, namely, that the land was lawfully occupied by others who had built a house on it. Therefore orders were made cancelling the registration of the deed of grant (it would seem also to follow that the grant itself must be declared invalid as Webster J held the grant was in Vai v 'Uliafu at 64) and dismissing the appellant's claim for an order evicting the respondents. 

[9] To the extent that the trial judge's reasoning relies on a mistake of fact by the Minister as a ground for setting aside his decision, it receives support from Vai v 'Uliafu where (at 64) this very ground was accepted in analogous circumstances as one of the grounds of the decision. His Honour also cited New Zealand and English authority, including an obiter dictum of Casey J (in a judgment with which Cooke P expressed "general agreement") in Fowler & Roderique v Attorney-General [1987] 2 NZLR 56 at 77. Casey J considered that a decision taken "on mistaken or inadequate advice" might be declared invalid. His Honour's approach also receives some support from Wade & Forsyth on Administrative Law (7 ed, 1994) at 316-318 and de Smith, Woolf & Jowell, Judicial Review of Administrative Action (5 ed, 1995) at 5-094. In the latter text, in the section cited, it is stated: 

"The taking into account of a mistaken fact can ... be absorbed into a traditional legal ground of review by referring to the taking into account of an irrelevant consideration." 

Both texts cite Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014, where Lord Wilberforce said (at 1047):

"If [an administrative] judgment requires, before it can be made, the existence of some facts, then, although the evaluation of those facts is for the Secretary of State alone, the court must inquire whether those facts exist, and have been taken into account, whether the judgment has been made upon a proper self-direction as to those facts, whether the judgment has not been made upon other facts which ought not to have been taken into account." 

In Daganayasi v Minister of Immigration [1980] 2 NZLR 130 at 145 et seq., Cooke J (as he then was) held that an administrative decision was "invalid on the ground of mistake", but Richmond P and Richardson J left this question open. In Australia, of course, a limited ground may be available in cases of mistake of fact under the Administrative Decisions (Judicial Review) Act, 1977 (Cth). 

[10] In the circumstances of this matter, we think the judgment under appeal was, in any case, clearly right on a ground that really depends upon the true construction of The Land Act. One of the foundations of that Act is the provision in clause 113 of the Constitution: 

"Every taxpayer shall have the right to hold an hereditary tax and town allotment upon and subject to such conditions as to the area thereof and the rent to be paid therefor as may be determined from time to time by the Legislature."

s.7 of The Land Act then provides: 

"Every male Tongan subject by birth upon making application on the prescribed form to the Minister of Lands shall be entitled to receive subject to the provisions of this Act a grant of land not exceeding 3.3387 hectares as a tax allotment and where any such grant is less than 3.3387 hectares the Minister may from time to time as land becomes available .... make further grants ...... until the area granted..... has a total area of 3.3387 hectares. He shall also be entitled to receive on making application as aforesaid and subject to the provisions of this Act a grant... in a town as a town allotment. " (Emphasis added.) 

[11] The general rights stated in s.7 to be "subject to the provisions of this Act" are given more detailed effect by later sections including s.43 and s 50, which provide: 

"43. (1) Every male Tongan subject by birth of 16 years of age not being in possession of a tax or town allotment shall be entitled to the grant of a tax or town allotment or if in possession of neither to the grant of a tax and town allotment. 

(2) The grant shall be subject to the provisions of this Act and shall be made in accordance with the following rules– 

(a) the applicant shall make an application on the prescribed form to the Minister; 

(b) the applicant shall produce for the inspection of the Minister his birth certificate or some other proof of the date of his birth; 

(c) the applicant shall pay the prescribed fees. 

50. Land for allotments shall be taken from the hereditary estates in accordance with the following rules-

(a) an applicant for an allotment lawfully resident in an hereditary estate shall have his allotments out of land available for allotments in that estate; 

(b) where there is no land available in the estate in which the applicant is resident, then the allotment shall be taken out of some other estate held by the noble or matapule in one of whose estates the applicant is resident; 

(c) if no land is available in any hereditary estate held by the noble or matapule in one of whose estates the applicant is resident then the allotment shall be taken out of the hereditary estate of any other noble who is willing to provide such allotment;  

(d) if no land is available under rule (c) then the applicant may have his allotment from Crown Land; 

(e) an applicant for an allotment to be granted out of Crown Land shall have his tax and town allotments from such particular portion of Crown Land as the Minister may decide: 

Provided that an applicant already resident on Crown Land shall where possible be granted the allotments from the particular area of Crown Land in which the applicant is resident." 

Repeatedly, in the provisions we have cited, reference is made to the question whether a piece of land is "available" to be granted. The scheme, as a whole, seems to us to make availability an essential requirement before a grant can be made. Therefore the discretion conferred on the Minister, in the case of Crown land, under s.50 (e), must take account of availability, as is indeed clearly implied by the words "where possible". This view will be reinforced if regard is had to the "prescribed form" referred to in ss. 7 and 43. That form appears as Form 9 at S – 3 and 4 of The Land Act and subsidiary legislation related to it in the "Red Statutes". Immediately under the place for the signature of the applicant, there appears on the form the following: 

"I hereby agree to the grant of the allotment as described above and declare that there is no impediment to this grant. 

Signature of Tofi'a Holder ...... " 

If the land were not "available" that would clearly be an "impediment". The Tofi'a Holder, of course, as is made clear by s.5, is the estate holder, and in the case of Crown land, the appropriate signature is the signature of the Minister who is, by s.19, "the representative of the Crown in all matters concerning the land of the Kingdom", and who makes the grant. So when he signs the form he does so on behalf of the King. The form itself, as a prescribed form, like other subsidiary legislation set out in the "Red Statutes", is given the force of law by an Act entitled The Laws Consolidation Act 1988 which is printed at the beginning of vol.1 of those statutes (see s.8 and the definitions in s.2). 

[12] Two aspects of the Minister's functions and duties, in a case such as this, combine to require him to take steps, which must be reasonable in the particular circumstances, to ascertain whether the land is in fact not subject to some other claim that might be an impediment to a grant or make it unavailable. In the first place, he cannot properly sign a declaration on behalf of the Crown that there is no impediment if the truth is that he simply does not know because he has made no sufficient inquiry. In the second place, the administrative decision to make the particular grant cannot properly be made in the absence of the same inquiry in any case where the Minister does not actually know whether the land is available, or whether any competing claim has been appropriately resolved. Of course, in both respects, the Minister does not have to make inquiries personally. He may rely on his officers, but if he does so, and they fail to perform the task properly, a person affected may have a remedy for that failure as if it were a failure of the Minister. 

[13] The duty to take reasonable steps to ascertain the facts to which we have referred has been held to apply by very high authorities. In Secretary of State v Tameside MBC at 1065, Lord Diplock said: 

"[T]he question for the court is, did the Secretary of State ask himself the right question and take reasonable steps to acquaint himself with the relevant information to enable him to answer it correctly?" 

And in the High Court of Australia, Brennan J, in Kioa v West (1985) 159 CLR 550 at 627, the issue being related to the obligation to accord natural justice to a party, said: 

"The repository of a power has to adopt a reasonable and fair procedure before he exercises the power ..." 

On that basis, his Honour considered an administrator could be held to account for a failure to have regard to "circumstances which, had he acted reasonably and fairly, he would then have known." Where that knowledge would have imposed a duty to accord natural justice to some person (as clearly, here, knowledge of the respondents' occupation would have done: Hakeai v Minister of Lands [1996] Tonga LR 142), Brennan J held (ubi supra) "the court must place itself in the shoes of the repository of the power to determine whether the procedure adopted was reasonable and fair". 

[14] We conclude that, in the circumstances of this case, reasonable steps were not taken by or on behalf of the Minister to acquaint him with the relevant information, so that a most material factor, the occupation of the land by the respondents together with the erection of a house on it, was not taken into account. The appeal must therefore be dismissed and the respondents (other than the Minister) must have their costs against the appellant. The orders made below, while upheld, should be varied to the extent we have indicated. 

[15] Before parting with the matter, we record that the Minister, although he had opposed the respondents' case below, supported it in this Court. His counsel acknowledged the Minister had an obligation, having received the appellant's application, to make inquiry. It should be added that we understand the Minister's practice was to make inquiries, and it may be that in this instance the normal application of that practice was diverted from its course by some procedural lapse in his Department. 

[16] Finally, we note that our dismissal of the appeal leaves the ultimate decision upon the question of the issue of a grant to the Minster.