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To'ofohe v Minister of Lands [2003] TOLawRp 28; [2003] Tonga LR 160 (9 July 2003)

IN THE SUPREME COURT OF TONGA
Land Court, Nuku'alofa

L 20/2001

To'ofohe

v

Minister of Lands

Ward CJ, assessor G Blake Esq
9-12 June 2003; 9 July 2003

Land law – compensation for surrender of land – no evidence of alleged promise – claim dismissed
Land law – claim statute-barred

The plaintiff's father, Fotu, was the holder of a tax allotment known as Nu'u'anga on the Government estates at Pangai, Ha'apai. It bordered the seashore with a total area of 3a 0r 32p and was adjacent to a Government quarry. The then Minister of Land Hon Tuita, requested the landholder to surrender a total of 2r 1.4p so the government could continue to quarry material from that land. That area included the initial 1r 31.6p and it would leave Fotu's 'api with a total area of 2a 2r 30.6p. The plaintiff alleged that his father was in New Zealand at the time and so the plaintiff had a meeting with the Minister at which it was suggested that his father surrender the 2r 1.4p. In return the Minister offered him an 8a api in 'Eua together with monetary compensation. The plaintiff did not want the compensation or the land in 'Eua. What he wanted was an 8a 'api in Tongatapu and he alleged that when he told the Minister, it was promised to him. Fotu died on 20 September 1994 and, on 19 September 1995, the plaintiff swore an affidavit as heir to the 'api in Ha'apai and a town allotment in Haveluloto his father had also held. The plaintiff already held a town allotment and so the Haveluloto allotment was held in trust for his son, then under 16 years. Nu'u'anga was registered in the plaintiff's name on 17 July 1996. The plaintiff's case was that there had been a firm promise by the Minister of Lands. There was no land immediately available in Tongatapu and the plaintiff said that the Minister gave instructions that a search should be made for land. The defendant denied any promise was made as alleged by the plaintiff. He admitted he had the power to recommend compensation but pointed out that no claim had been made apart from the claim for an allotment in Tongatapu. He had offered an acre of land in Ha'apai but it had not been taken up. The defence further asserted that the claim was time barred under section 170 of the Land Act.

Held:

1. The Court was not satisfied the plaintiff proved there was any agreement by Hon Tuita to grant 8acres of land in Tongatapu. The Court accepted the surrender was at the request of the Minster and that land may have been offered in exchange. However, it was not satisfied on balance that the Minster would have offered 8a of the most valuable and scarce land in exchange for 2r 1.4p of even a very productive quarry. There was no land available in Tongatapu and he would have been well aware of that fact. The claim for an order allocating land failed.

2. If such a promise was made by the Minister, the right of action would be to enforce the promise and that accrued at the time the promise was made. The Court did not accept any such promise has been made but, if it had, it would be statute barred by section 170.

3. The claim was dismissed with costs to the defendant.

Statutes considered:

Land Act (Cap 132)

Counsel for plaintiff: Paasi and Tonga
Counsel for respondent: Kefu

Judgment

The plaintiff's father, Patiola Fotu To'ofohe (whom I shall refer to as Fotu as have all the witnesses) was the holder of a tax allotment known as Nu'u'anga on the Government estates at Pangai, Ha'apai. It bordered the seashore with a total area of 3a 0r 32p and was adjacent to a Government quarry.

In 1985, the Government quarry had intruded into the land and compensation of $900.75 was paid for the material removed. The total area affected by the unlawful intrusion was 1r 31.6p.

It appears that the material from that and other quarries in the area was being used for the construction of the airstrip. The hope was that the airstrip would be ready for His Majesty to open when he was in Ha'apai for the agricultural show.

There is no dispute that the, then, Minister of Land, Hon Tuita, requested the landholder to surrender a total of 2r 1.4p so the government could continue to quarry material from that land. I am satisfied on balance of probabilities that area included the initial 1r 31.6p and it would leave Fotu's 'api with a total area of 2a 2r 30.6p.

The plaintiff gave evidence that his father was in New Zealand at the time and so the plaintiff had a meeting with the Minister at which it was suggested that his father surrender the 2r 1.4p. In return the Minister offered him an 8a api in 'Eua together with monetary compensation. The plaintiff did not want the compensation or the land in 'Eua. What he wanted was an 8a 'api in Tongatapu and, when he told the Minister, it was promised to him.

Fotu's half brother, Masao Paasi, a law practitioner, was also approached by the Minister with a request he contact Fotu about the Government's request. He also supplied the Lands Department with the contact details in New Zealand. Fotu wrote a letter from New Zealand on 13 August 1985 addressed to the Minister:

"I have received your decision which was conveyed by the clerk. Therefore, I do consent for the surrender of 2 roods 1.4 perches from portion of my tax allotment which is known as Nu'u'anga situated at Pangai Ha'apai, for the work.

Therefore authority has been given to Masao Paasi to finalise with you an allotment in Tongatapu for farming."

The Privy Council then approved the application for surrender on 8 October, 1985. The next day the plaintiff swore an affidavit that he was the heir to the remaining 'api. Fotu died on 20 September 1994 and, on 19 September 1995, the plaintiff swore another affidavit as heir to the 'api in Ha'apai and a town allotment in Haveluloto his father had also held. The plaintiff already held a town allotment and so the Haveluloto allotment was held in trust for his son, then under 16 years. Nu'u'anga was registered in the plaintiff's name on 17 July 1996.

The plaintiff's case is that there had been a firm promise by the Minister of Lands. There was no land immediately available in Tongatapu and the plaintiff's case is that the Minister gave instructions that a search should be made for land. He also referred to some land held by the Free Wesleyan Church which was likely to come available in a few years time.

The plaintiff had wanted this to be put in writing but the Hon Tuita asked him to trust him and it would be done. In fact nothing was done before the Minister retired nor has anything been done by any Minister since. The plaintiff's case is that he has repeatedly spoken to successive Ministers of Lands but has never been given any land. Mr Paasi has also tried to have the matter dealt with by the various Ministers who have held office since 1985.

Three letters have been produced to the court. The first is from Mr Paasi written on 21 January 1997 and the others from the plaintiff written on 19 June 1997 and 15 April 1998.

Two witnesses were called from the Ministry of Lands and they agreed that there had been a number of visits by the plaintiff to the ministry and to the Minister. Both the plaintiff and Mr Paasi testified that Paula Moala was present at one of the meetings with Hon Tuita when the promise was made. Mr Moala had no recollection of such a promise. He told the court the first he was aware of the frequent visits by the plaintiff was in 1997.

Vili Uli Mafi also referred to the plaintiff visiting the ministry and asking to speak to the Minister but his recollection was that the first time he saw the plaintiff was in 2000.

The defence called only the current Minister of Lands, Hon Fielakepa. He told how, when he heard of the matter, he ordered a thorough search of all the records both in Tongatapu and Ha'apai. Various documents surfaced but there was no record of any promise of such an exchange of land being made. His work in the ministry had demonstrated to him that Hon Tuita was a most meticulous Minister and the fact he had made no note pointed strongly to there being no promise made.

The Minister agreed that, when land was surrendered for Government use, alternative land should be offered and he, in fact, offered an acre of land on Ha'apai to settle the matter. He has received no response and, although the offer still stands, he assumes that, as this court action has been commenced, the offer has not been taken up.

The evidence in the case revealed that there had been a decision to renew the lease on only 50 acres of a plot of 100acres held by the FWC in the area opposite Sia'atoutai. It would also appear that has not been implemented and the case has been taken to the King. However, the plaintiff seeks an order that the Minister should grant and register 8 acres from that land or alternatively order payment of $60,000 compensation for the 2r 1.4p surrendered or for the material removed from the land.

The defendant denies any promise was made as alleged by the plaintiff. He admits he has the power to recommend compensation but points out that no claim has been made apart from the claim for an allotment in Tongatapu. He has, as has been stated, offered an acre of land in Ha'apai but it has not been taken up. The defence further asserts that the claim is time barred under section 170 of the Land Act.

Having considered all the evidence, I am not satisfied the plaintiff has proved there was any agreement by Hon Tuita to grant 8acres of land in Tongatapu. I accept the surrender was at the request of the Minster and that land may have been offered in exchange. However, I am not satisfied on balance that the Minster would have offered 8a of the most valuable and scarce land in exchange for 2r 1.4p of even a very productive quarry. There was no land available in Tongatapu and he would have been, I am satisfied, well aware of that fact.

I accept that there have been repeated approaches to ministers but I am not satisfied those approaches occurred throughout the period in question. It is significant that the first letter produced to the court only dates from 1997. If, as is the plaintiff's case, he had been trying repeatedly to have this promise implemented and had equally repeatedly been thwarted, I do not accept he would only have first thought of putting his complaint or request in writing 12 years later. He had, in the meantime, signed an affidavit as heir following his father's death. What better time to include a written account of this claim? I also bear in mind that his father's half brother was a law practitioner of considerable experience who had been involved from the outset yet he also was only able to produce a letter from 1997. Neither that letter nor the first one from the plaintiff referred to any earlier correspondence.

The final sentence in the letter of surrender from Fotu shows the chance of obtaining land in Tongatapu had occurred to the plaintiff's father but there is nothing to support the contention that Tuita accepted that neither is there anything in the Privy Council decision to suggest any such consideration.

I am satisfied on the balance of probabilities that there was no such promise given by the Hon Tuita or any subsequent minister and the claim for an order allocating land fails.

It is clear that no compensation has been paid for the land surrendered. No evidential basis for the sum of $60,000 has been adduced. I accept the Minister has the power to recommend compensation but whether or not it is granted is a matter for the Government. If the sum offered is inadequate, the recipient may then seek a review by the court but, at this stage, I do not consider the court can or should make any such order.

The defence suggests that, if compensation should be paid it should be assessed at the rate paid previously for the material removed in the quarrying operation. I would suggest that is only one consideration. The previous compensation was only for the material removed. The right to the land remained with the landholder. What Fotu surrendered in 1985 was the right to 2r 1.4p of his 'api. The potential quantity of material in such an area is one consideration but there should also be some consideration given to the loss of the land itself. However, as I have stated, that is for the Government if a claim is brought.

Finally the question of the effect of section 170:

"No person shall bring in the Court any action but within 10 years after the time at which the right to bring such action shall have first accrued to some person through whom he claims, or if such right shall not have accrued to any person through whom he claims then within 10 years next after the time at which the right to bring such action shall have first accrued to the person bringing the same."

Mr Kefu for the defence suggests the right time to bring this claim first accrued when it was clear the Hon Tuita was not going to fulfil his alleged promise. That, he suggests was when the Minister resigned in 1989.

I think that is incorrect. If such a promise was made by the Minister, the right of action would be to enforce the promise and that accrued at the time the promise was made.

As I have stated, I do not accept any such promise has been made but, if it had, I would have ruled it was statute barred by section 170.

The claim is dismissed with costs to the defendant.