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Tafa v Viau [2006] TongaLawRp 28; [2006] Tonga LR 287 (16 August 2006)

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.