Home | Databases | WorldLII | Search | Feedback Tonga Law Reports

Maamakalafi v Finau [2004] TongaLawRp 34; [2004] Tonga LR 218 (30 July 2004)

IN THE COURT OF APPEAL OF TONGA

Maamakalafi anor

v

Finau

Court of Appeal, Nuku'alofa
Burchett, Tompkins, and Salmon JJ
AC 16/2003

27 July 2004; 30 July 2004

Land law – registration of deed of grant – registration final

In the village of Fotua on Foa Island, which was the main island in the Ha'apai group of islands, there were two particular allotments. One of the allotments was situated almost in the middle of the village on the corner of the main road north and a side road which runs west down to the ocean. The other was situated at the northern outskirts of the village on the eastern side of the main road north. Each of the allotments had a name. One was called "Lolopua" and the other was called "Heilala". The plaintiff claimed that the central allotment was Lolopua and the allotment on the boundary was Heilala. The defendants contended the opposite. The names assumed significance because on 16 October 2000, the plaintiff became the registered holder of an area of 1 rood 10 perches which was originally part of the central allotment which he claimed was called Lolopua. He sought an order evicting the defendants from his land. The defendants contended that the Deed of Grant should never have been registered in the plaintiff's name because the central allotment was the land historically known, not as Lolopua, but as Heilala and Heilala belonged to the first defendant's father, Vaima'ali Mo'unga. The defendants contended that the land was never available to be registered in the plaintiff's name. The Supreme Court found in favour of the plaintiff and the defendants appealed.

For the Supreme Court decision, see Finau v Maamakalafi [2003] Tonga LR 284.

Held:

1. The Minister of Lands was not joined as a party to the proceeding. If the registration and deed of grant were to be set aside on the ground that he acted unlawfully, that would require him to be joined and heard.

2. The question was whether land was available in the relevant hereditary estate, not whether an application has been made for it. The Minister may have more than one way open to him to ascertain the answer to that question. In any case, unless there was proof to the contrary, a presumption of regularity would protect the registration effected and the deed of grant issued.

3. An infringement of a statutory provision regulating the performance of an official act does not necessarily spell invalidity.

4. The trial judge was right to reject the appellants' defences and to uphold the respondent's claim based on the Deed of Grant of that part of "Lolopua" which was described therein, being situated in an area near the centre of the village of Fotua. The appeal was dismissed with costs.

Cases considered: