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Tukuafu v Latu [2005] TOLawRp 26; [2005] Tonga LR 346 (21 July 2005)

IN THE COURT OF APPEAL OF TONGA

Tukuafu

v

Latu anor

Court of Appeal, Nuku'alofa
Webster CJ, Burchett, Tompkins, Salmon JJ
CA 5/2005

15 and 20 July 2005; 21 July 2005

Land law – question of entitlement to tax allotment – appeal allowed

The facts are set out in the decision of the Land Court at Tukuafu v Latu anors [2005] Tonga LR 141.

Held:

1. The appeal was allowed and the decision of the Land Court was set aside.

2. The Court made the declaration that the appellant was entitled to the tax allotment in dispute.

3. Costs were awarded to the appellant.

4. The Court adjourned the question of the remedy to a future sitting to enable the parties to consider the matter further. Unless the first respondent chose to vacate the land, the first respondent must pay a reasonable occupation fee. The matter was remitted to the Land Court to fix the amount of such a fee, unless agreement was reached on it.

Counsel for appellant: Mr Niu
Counsel for first respondent: Mr Tu'utafaiva
Counsel for second respondent: Solicitor-General (Mrs Taumoepeau)

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 decision of the 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 adjourns 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.