IN THE COURT OF APPEAL OF TONGA
LAND JURISDICTION
NUKU'ALOFA REGISTRY

Appeal 13/2000
Appeal 13A/2000
Case No. L.228/99

BETWEEN

MINISTER OF LANDS
Appellant

-v-

TEVITA ‘AMELEKI aka TEFIATA ‘AMELEKI FINAU
Respondent

AND

HENELE FINAU
Appellant

-v-

TEVITA ‘AMELEKE FINAU
Respondent

Counsel:
‘Aminiasi Kefu for appellant the Minister of Lands
Lesina Tonga for appellant Henele Nai
Mrs Vaihu for respondent

Date of Hearing: 24 July 2001
Date of Judgment: 27 July 2001

JUDGMENT OF THE COURT DELIVERED BY TOMPKINS J

[11 These two appeals concern a town allotment in Ma'ufanga being lot 1 on plan 109 (the allotment). The action was heard by Finnigan J, sitting with an assessor Honourable Lasike. By a judgment issued on 29 May 2000 Finnigan J directed that the registration of the appellant Henele Nai to the allotment be set aside, that the first appellant the Minister of Lands cancel the deed of grant issued on 23 September 1994 in the name of the appellant Henele Nai, and that the Minister re-issue the deed of grant issued on 14 September 1994 in the name of the respondent Tevita Finau. The first and second appellants have appealed against that judgment.

[2] At the commencement of the hearing, Mr Kefu for the Minister of Lands sought and was granted leave to withdraw the, appeal by the Minister. It is accordingly dismissed.

The sequence of events

[3] The events that occurred are set out in considerable detail in the judgment under appeal. The following is an outline of the events as found by the judge, relevant to the issues raised on the appeal.

[4] In or about 1971 land was required by the Government for a Police College at Kolofo'ou. Those who were living on that land were moved on to land in Ma'ufanga. The estate holder of that land was and is Hon Fakafanua. A new village came into being at Houmakelikao. The first people to be given the allotment were Sione and Valamotu Vi. They did not register as the land holders, but were known to the estate holder, who accepted them as the occupiers.

[5] The respondent was another of those who moved to Houmakelikao. Valamotu Vi, who with her husband Sione had never lived on the allotment, agreed to the respondent occupying it. That was in 1971. The respondent has lived on the allotment ever since.

[6] When Valamotu Vi went to Australia in 1.988 she authorised her nephew Lupeti to look after the allotment. Later, as the result of discussions within the Vi family, it was agreed that the appellant Henele Nai should have the allotment. Pita Vi, the son of Valamotu Vi, signed a letter as heir which was taken to the estate holder who signed the consent on their application and said the land would be registered as Henele Nai's.

[7] In the intervening time the judge found that the respondent had carried out his village obligations and in particular had been a frequent visitor to the home of the estate holder Hon Fakafanua. The respondent is a relative of the estate holder's wife. The respondent said that he visited the estate holder's home. on several occasions for the purpose of obtaining registered title to the allotment. He took with him the application form which required the signature of the estate holder. The estate holder did not sign the form. Instead he told the respondent each time to stay on the land because it was he who was taking care of it. On one occasion the estate holder told the respondent to go to the town officer, and that whoever was named by the town officer would be the person to whom the estate holder would give the allotment. The estate holder Hon Fakafanua said that he had no memory of any visits by the respondent, but the judge accepted the respondent's evidence about these visits and what the respondent was told.

[8] The respondent went to the town officer with the form which the town officer signed. The town officer and the respondent went about three times to see Hon Fakafanua. The respondent came away with the form unsigned but told the town officer that Hon Fakafanua had again advised him to return and stay on the allotment.

[9] The respondent took the form to the Minister. He told the Minister what had occurred. The Minister said that he would see Hon Fakafanua. Later the respondent was told the Minister had approved the application for registration. On 14 September 1994 a deed of grant issued to the respondent.

[10] Lupeti Vi and the appellant Henele Nai then lodged their application form, which the estate holder had signed on the same day that the respondent's deed of grant was issued. The Minister accepted their application. He cancelled the registration of the respondent and on 22 September 1994 issued a new deed of grant to the appellant Henele Nai.

[11] The judge made a further finding relating to the appellant. He comes from Fua'amotu which is on Tungi's estate. He lives there, on an allotment that belongs to his uncle. In 1994 he asked Hon ‘Ahome’e, the Tungi’s agent, whether there was an allotment available. However, the judge was not prepared to accept for the purpose of his decision that was so, because he was not satisfied that the appellant’s inquiry extended to the whole estate of Tungi.

The judge’s findings

[12] After a detailed review of the submissions and making further factual findings which we need not to detail, the judge gave three reasons for settings aside the registration in favour of the appellant Henele Nai.

[13] First, in applying the equity principle, he directed that the registration of the appellant be set aside in favour of registration of the respondent on the ground of an inequitable breach by the estate holder of his assurance to the respondent on the ground of an in equitable by the estate holder of his assurance to t he respondent.

[14] Secondly, he set it aside because of an inequitable breach of assurance by the Minister. Having been told by the respondent of his dealings with the estate holder, the Minister said that he would see Hon Fakafanua. The Minister registered the respondent and issued a deed of grant to him. These actions, the judge considered, included an assurance to t he respondent that the Minister had carried out his duties, and had lawfully granted the allotment to him.

[15] Thirdly, the judge found there to be a subsequent error of law by the Minister when he purported to cancel the respondent’s registration. Before granting the allotment to the appellant Henele Nai, he failed to ascertain whether there was other land available for the appellant on the estate of Tungi, which he was bound by s50 to do. This failure was an error of law. Equity allows the court to intervene and correct that error.

[16] The judge made further findings. He held t hat the respondent was lawfully residing on the allotment, not because of permission from the Vi, family, but rather because of permission given by the estate holder Hon Fakafanua. He also held that if, as the estate holder said, the Minister made no contact with him so that there was a failure to consult, that would not make the registration invalid. He rejected a submission by Ms Tonga for the appellant that the Minister made a valid grant to the appellant on 15 April 1997 when he decided that the appellant should hold the allotment after the court remitted the matter to him for his consideration. The then Minister was the Hon Fakafanua. He also did not accept that a second decision, also in the appellant's favour, was a valid and binding decision. Those decisions could only be effective if the court were to hold that the initial grant to the respondent was invalid.

[17] It was for these reasons that the judge directed that the Minister reissue the deed of grant of the allotment to the respondent that was initially issued on 14 September 1994 and cancel the deed of grant to the appellant Henele Nai that was issued on 22 September 1994.

The issue on the appeal

[18] The central issue on the appeal is whether the approval by the Minister of the respondent's application, the registration of the respondent and the issue of the grant of the allotment to the respondent were valid. If they were, they must stand. Any purported revocation of the registration and grant by the Minister is invalid as made without jurisdiction. If they were not valid, the later grant to the appellant is effective.

[19] This issue turns on the interpretation of the relevant provisions in the Land Act (Cap 133) , and in particular what Parliament intended to be the consequence if the Minister did not consult the estate holder as required by the proviso to s 8. Is it the intention that the requirement to consult is mandatory, with the result that a failure to consult renders the grant invalid as made without jurisdiction? Or is it directive or permissive, with the result that a failure to consult leaves what was done, the approval of the application and the issue of the grant, unaffected?

[20] To resolve this issue, the task of the court is to scrutinise the Act, and determine, in the light of its particular provisions, the legal consequence most likely to have been intended for breach of the duty: Bennion, Statutory Interpretation, 2nd edition, 30.

The relevant provisions in the Act

[21] The power of the Minister to make the grant is contained in subss 19(1) and (2):

19. (1) The Minister of Lands is the representative of the Crown in all matters concerning the land of the Kingdom.

(2) He shall grant allotments to Tongan subjects duly entitled thereto by law.

[22] The appellant relies on s 8, relating to the provision of allotments:

8. Subject to the provisions of this Act relating to surrender, the grant, if the applicant be lawfully residing on an hereditary estate, shall be made from the lands in such hereditary estate; and if the applicant is lawfully residing upon Crown Land shall be made from Crown Land:

Provided always that land comprised in an hereditary estate shall not be granted as a tax or town allotment without prior consultation with the holder of the hereditary estate.

[23] Also relevant is s 34, providing that an estate holder is not to refuse land for allotments:

34. (1) The holder of an hereditary estate shall admit into possession any person who has been granted an allotment upon his estate by the Minister:

Provided that a holder shall be permitted to reserve a portion of the hereditary estate, being of such area as may be determined by regulation, for the sole use of himself and his successors in title.

(2) Before making a grant of a tax allotment out of an hereditary estate the Minister shall consult the holder thereof and hear any objections he may make to the grant and where the Minster and the holder of the hereditary estate fail to agree, the Minister shall nevertheless grant the land as a tax allotment but such grant shall within 3 months of the making thereof be liable to review by the Court, the decision of which on the matter shall be final.

[24] Finally, we refer to s 43, providing that a male Tongan subject may apply for an allotment, and prescribing the procedures:

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;

Did the Minister consult the estate holder?

[25] Ms Tonga submitted that the grant to the respondent was invalid because the Minister did not have any prior consultation with the holder of the hereditary estate, and because the form of application prescribed by s 43(2)(a), which provided for the consent of the estate holder to be endorsed, did not have such consent endorsed.

[26] As to the facts, the Minister at the relevant time was deceased by the time of the trial. The estate holder Hon Fakafanua gave evidence that he was not contacted by the Minister concerning the grant of the allotment to the respondent. The judge referred to a letter from the Minister dated 19 September 1994 addressed to the Secretary of Land and Survey requesting the Secretary to cancel the registration of the allotment to the respondent, stating the reason for this cancellation to be ". . . because the estate holder did not offer this allotment." The judge expressed residual doubts about the claim by the estate holder that he had not been consulted by the Minister. But he did not need to resolve that factual issue.

[27] It is apparent from the Minister's letter of 19 September 1994 that he had by that date consulted with the estate holder, who had apparently claimed to the Minister that he had not offered the allotment to the respondent. The letter does not state that he did not consult with the estate holder before the issue of the deed of grant to the respondent on 14 September 1994. Also we note that the letter appears to be at odds with the unqualified denial by the estate holder that he was contacted by the Minister concerning the grant of the allotment to the respondent.

[28] However, since no express factual finding was ;made by the judge, and having regard to the evidence given by the estate holder, we will now consider the legal consequences if, as a matter of fact, there had been no consultation by the Minister with the estate holder prior to the grant of the allotment to the respondent.

Conclusion

[29] Section 8 does not expressly state that it is the Minister who must consult with the holder of the hereditary estate prior to the grant of a tax or town allotment. However, as it is only the Minister who has the power to grant an allotment, the proviso should be interpreted to mean that it is the Minister who is directed to carry out the prior consultation.

[30] We have reached the conclusion that it was not the intention of Parliament when enacting s 8 that a lack of prior consultation by the Minister would render invalid and void the grant of a tax or town allotment. The following are our reasons for reaching this conclusion.

[31] First, all land in Tonga is the property of the King: the Constitution, clause 104. Subsections 19(1) and (2) appoint the Minister as the representative of the Crown to grant allotments to Tongan subjects. It is inconsistent with such an unqualified appointment to hold that non-compliance with the proviso to s 8 renders any grant he has made on behalf of the King invalid.

[32] Secondly, the broad policy of the statutory provisions is that it is the Minister who is given the sole statutory authority to issue a grant of an allotment. The requirement to consult is in the nature of a procedural step to enable the Minister to be informed of the attitude of the estate holder. That attitude may well be relevant to how the Minister exercises his discretion on an application for the issue of a grant. But there are no reasons for finding that the requirement to consult was intended to be a fetter on the Minister's power to make the grant.

[33] Thirdly, the phrase "prior consultation" in the proviso to s8 is lacking in the degree of certainty to be expected if non-compliance were intended to invalidate a grant. Had that been the intention it could be expected, for example, that the provision would specify the nature of the consultation with a requirement that the record of the consultation and the consequences of it be in writing signed by the Minister. The absence of specific provisions of this kind supports the view that the proviso is a direction to the Minister on the steps he should take, but is not intended to invalidate the grant if he fails to do so.

[34] Fourthly, subs 34(2) contains a more detailed direction to the Minister of the course he should adopt before making a grant of a tax allotment. It will be noted that this provision does not apply to a town allotment, which the allotment in this case was. If the proviso to s 8 were intended to be a condition precedent to the Minister having jurisdiction to grant an allotment, there would be little point in enacting subs 34(2).

[35] This conclusion is not affected by subs 43(2). It is correct, as Ms Tonga submitted that the prescribed form of application for an allotment referred to in the subsection contains a section to be signed by the estate holder, recording his agreement to the grant of the allotment and declaring that there is no impediment to prejudice the grant. But such a provision in a prescribed form cannot be interpreted to mean that the validity of a grant is conditional upon the estate holder signing the agreement in the application.

Such an interpretation would be directly contrary to the proviso in s 8, requiring only consultation with the estate holder.

The result

[36] The grant of the allotment to the respondent on 14 September 1994 was valid. The purported revocation of that grant by the Minister is of no effect. The purported grant of the allotment to the, appellant is also of no effect. The orders made by the judge are confirmed.

[37] The appeal is dismissed. The respondent is entitled to costs on the appeal against the Minister as the appellant in CA 13/2000 and against Henele Nai as the appellant in CA 13A/2000, to be agreed or taxed.

WARD, J.
BURCHETT J
TOMPKINS J.