IN THE COURT OF APPEAL OF TONGA
NUKU’ALOFA REGISTRY

APPEAL NO. 5/2005

BETWEEN:

TEVITA TUNUFA’I TUKUAFU
Appellant

AND:

1. SIONE TU’ALAU LATU
2. MINISTER OF LAND
Respondents

Coram: Webster CJ
Burchett J
Tompkins J
Salmon J

Counsel: Appellant Mr Niu
1st Respondent Mr Tu’utafaiva
2nd Respondent Solicitor-General (Mrs Taumoepeau)

Date of hearing: 15 July 2005, 20 July 2005
Date of judgment: 21 July 2005

SUMMARY OF DECISION

[1]	This was an appeal from the Land Court concerning the right to a tax allotment which is part of the Kanokupolu Royal Estate. A question of jurisdiction was raised after the conclusion of argument and the Court reconvened yesterday to consider that. The Court had reached a clear conclusion, which is the unanimous view of all of its members, that the Court does have jurisdiction. The reasons will be given in the full reasons for judgment which will be delivered in due course.

The decisions of Court is:

(1)	that the appeal be allowed;

(2)	that the decisions below be set aside;

(3)	that the declaration be made that the appellant is entitled to the tax allotment in dispute known as Vakaloa;

(4)	apart from the question of costs, which we award to the appellant here and below, the question of the consequential orders remains. As to that, the Appellant originally sought an order for removal of the Hawaiian restaurant resort built by the First Respondent and an order for payment by the First Respondent to him of mesne profits of $250 per month. That does appear to this Court to raise a number of practical issues, but at the hearing the Appellant’s Counsel Mr Niu indicated that, if the appeal were to be successful, it might be possible for some agreement to be reached between the parties. The Court therefore adjourn the question of the remedy in this case to a future sitting to enable the parties to consider the matter further. In the meantime, unless the First Respondent chooses to vacate the land as sought by the Appellant, the First Respondent must pay a reasonable occupation fee. The matter is remitted to the Land Court to fix the amount of such a fee, unless agreement can be reached on it.

[2]	It should be noted that, on the application of the Solicitor-General, and subject to the giving by her of an appropriate undertaking on behalf of His Majesty the King (which has been given) the entitlement of the appeal has been amended so as to delete the reference to His Majesty as the Third Respondent.

R M Webster
President