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Tafa v Viau [2006] TOLawRp 11; [2006] Tonga LR 125 (24 April 2006)

IN THE LAND COURT OF TONGA

Tafa

v

Viau anors

Land Court, Nuku'alofa
Ford Acting CJ, and Land Assessor George Blake
L 15/2005

16, 17 and 20 February 2006; 24 April 2006

Land law – hearsay rule exception – Minister made grant based on mistake – deed of grant set aside

On 13 November 1987 a town allotment of 30.1 perches was leased by the Crown to the plaintiff's aunt for a term 50 years. On 10 April 2004 the aunt, who resided in Australia, wrote to the Minister of Lands requesting the cancellation of her lease so as to enable the plaintiff, her nephew, to make application for a deed of grant to the land. Application was duly made and Cabinet approved the deed of grant which was issued to the plaintiff on 29 November 2004. When the plaintiff then attempted to clear the allotment preparatory to erecting a new home, he was confronted and threatened by the first and second defendants who claimed to be long-term occupiers of the land. The plaintiff consequently issued proceedings seeking an order for their eviction. The first and second defendants were husband and wife. They married in 1992 but the wife had lived on the property since moving there in 1986 with her parents and her paternal grandparents when she was only 11 years of age. The evidence for the defence was that the land in question was originally part of an 8 acre tax allotment which had belonged to 'One'one who, perhaps, was a very distant relative of the second defendants. In all events in 1985 'One'one, in the presence of his son and heir, Mosese, gifted the land in question to the second defendant's family. The plaintiff challenged this evidence and objected that the evidence relating to 'One'one, who had died in 1990, was hearsay and the defendant had failed to call his son Mosese as a witness. For their part, the defendants alleged that there had been negligence on the part of the Minister of Lands or a denial of natural justice in approving the deed of grant to the plaintiff. In the alternative, they contended that the Minister had made the grant to the plaintiff on wrong principle by mistake in that he had wrongly assumed that the land in question was vacant.

Held:

1. The Land Court traditionally recognised that land cases constitute an exception to the hearsay rule and the evidence relating to 'One'one was accepted.

2. Registration of a deed of grant was final unless it came about as a result of an error of law (i.e. was contrary to the Land Act) or as a result of fraud, mistake, breach of promise made by the Minister or breach of the principles of natural justice. (Note: the application of the principles of judicial review to land cases was now embodied in Order 6 Rule 1(4) of the Land Court Rules 2007).

3. There was no negligence or breach of the principles of natural justice on the part of the Minister of Lands.

4. In allocating an allotment the Minister of Lands was required to ascertain whether the land in question was "available". If the Minister made a mistake on this issue, whether as a result of an incorrect assumption on his own part or otherwise, the consequence would be that he failed to take a material fact into account and, in those circumstances, the court would intervene and grant relief.

5. Registration of the plaintiff's deed of grant was set aside and costs were awarded in favour of the defendants.

Cases considered:

Ali v Deportation Review Tribunal [1997] NZAR 208

Doyle and others v Northumbria Probation Committee [1991] 4 All ER 294

Fifita v Minister of Lands (1972) Tonga LR Vol III, 45

Fowler & Roderique Ltd v Attorney General [1987] NZCA 92; [1987] 2 NZLR 56 (CA)

Hakeai v Minister of Lands & ors [1996] Tonga LR 142 (CA)

Kalaniuvalu (Noble) v Minister for Lands (1937) Tonga LR Vol 11, 40

Kioa v West [1985] HCA 81; (1985) 159 CLR 550

Na'ati v Motu'apueka (Land Court, L 3/96, Lewis J, November 1998)

Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1976] UKHL 6; [1977] AC 1014

To'a v Veikune [PC] Tonga LR 1974-1980, 107

Tu'i'afitu and Foueti Halalilo v Mesui Moala (1956) Tonga LR, Vol 11,104

Vai v 'Uliafu [1989] Tonga LR 56

Wandsworth London Borough Council v Winder [1984] UKHL 2; [1984] 3 All ER 976

Statutes considered:

Evidence Act (Cap 15)

Land Act (Cap 132)

Counsel for plaintiff: Mr Fakahua
Counsel for first and second defendants: Mr Niu
Counsel for third defendant: Mr Sisifa

Judgment

Introduction

[1] On 29 November 2004 the Minister of Lands issued to the plaintiff a registered deed of grant confirming that he was the titleholder of a 761.9 square meter town allotment at Fangaloto, Kolofo'ou. When the plaintiff then attempted to clear the allotment preparatory to erecting a new home, he was confronted and threatened by the first and second defendants who claimed to be long-term occupiers of the land. The plaintiff consequently issued the present proceedings seeking an order for their eviction. (In this judgment I shall refer to the first and second defendants as 'the defendants' and to the third defendant as 'the Minister').

[2] For their part, the defendants claim that, as they were living on the land, the allotment had never been available for allocation by the Minister to anyone else. They contend that the Minister's approval of the grant was unlawful in that it was made under a mistake of fact, namely, that he believed the allotment was unoccupied. They have filed a counterclaim seeking an order cancelling the plaintiff's deed of grant.

The case for the plaintiff

[3] The allotment in question is part of a subdivision which was developed out of an eight acre tax allotment towards the end of the 1980s. The legal description of the allotment is Lot 18 R.P. 4900. It is adjacent to Lot 17 which also figured prominently in evidence. The plaintiff, 38-year-old 'Inoke Tafa, is the master of a fishing boat. His case is that on 13 November 1987 Lot 18, containing 30.1 perches, was leased by the Crown to his aunt, Mele Fifita Borman. The lease was for a term of 50 years. On 10 April 2004 Mele Borman wrote to the Minister of Lands requesting the cancellation of her lease so as to enable the plaintiff, her nephew, to make application for a deed of grant to the land. Application was duly made and Cabinet approved the transaction on 28 September 2004. As already noted, the deed of grant was issued to the plaintiff on 29 November 2004.

[4] The plaintiff then pleads that in early January 2005 he showed his deed of grant to Sione Finau, the father of the second defendant, and he 'repeatedly gave opportunities' to Sione and the defendants to vacate the land but they refused to do so.

The case for the defendants

[5] The case for the defendants is more complicated. The first defendant, 32-year-old Siope, is a motor mechanic by occupation and his 31-year-old wife Cinderella, the second defendant, works for the Ministry of Justice as a cleaner in the courts. They married in 1992 and have six young children, the youngest of whom was born three days after she gave evidence in this case. Cinderella's father is Sione Finau (also referred to in evidence as Sione Noa). At some stage, the date was not revealed in evidence, Sione divorced Cinderella's mother, Ngaluafe, and married his present wife, Talafaiva.

[6] Cinderella told the court that she was brought up by her father's parents, Noa and Hevaha, who lived at Ngeleia. Noa died in September 1991 and her grandmother, Hevaha, died in March 2000. Cinderella related how in 1986, when she was 11 years of age, she was told by her grandmother that they had been given an allotment at Fangaloto and she recalled that same year then moving to the land in question with her father, his wife and her father's parents. Her father cleared the land and built a Tongan fale which they all lived in. He also built a kitchen and toilet and dug a well which was cemented on top.

[7] Helpful photographs were produced by the defendants in evidence which showed the Tongan fale, the kitchen and other points of interest in the case. By reference to a diagram, which was also produced as an exhibit by consent, Cinderella was able to identify a variety of trees which the family had planted on the property around the late 1980s.

[8] Cinderella explained how the original Tongan fale was replaced with a house made of plywood and then, by the time of her marriage in 1992, the plywood house had in turn been demolished and replaced by the present dwellinghouse which is built on a concrete foundation with timber frames, gib board wall linings and a galvanised iron roof. The dwelling house is a permanent structure and it has an adjacent water tank. That dwelling house is the home which Cinderella and her family have lived in since shortly after her marriage and they still live in it today. For her part, in other words, Cinderella has now lived on the allotment, which she understood had been given to her family back in 1986, continuously since she was an 11-year-old girl 20 years ago.

[9] By reference to the diagram referred to earlier, Cinderella was able to pinpoint the location of the original Tongan fale, the original kitchen, the well, the toilet and shower blocks, the plywood house, the present dwelling house and the water tank. Although there were some discrepancies in the spots identified by other witnesses, I am satisfied on the evidence that over the last 20 years, Sione Finau and his family have utilised the whole allotment, i.e. both lots 17 and 18, as their own. They lived on the land without any form of physical disruption between 1985/86 and 2005. The first inkling Cinderella had that there may have been a problem came in 2005 when she was at work one day and her husband called her from home telling her that the plaintiff was on their property cutting down some coconut trees.

[11] That, in essence, is the case for the defendants. They contend that, as they were lawfully in possession of the property for all those years, it was simply not open to the Minister to allocate the land to someone else.

The evidence

[12] Sione Finau, Cinderella's father, gave evidence on behalf of the defendants. He was an important witness. Sione, who is now 52 years of age, is a carpenter by occupation. He told the court that the land in question was originally part of an eight acre tax allotment which belonged to one, Tevita 'One'one Kamea. (During the trial this person was referred to as both ''One'one' and 'Kamea'. I will refer to him throughout this judgment as ''One'one' and, so as to avoid any confusion, I have also taken the liberty of altering any reference to 'Kamea' in counsels' submissions to read as ''One'one').

[13] Sione referred to 'One'one as his 'grandfather' but when asked in evidence in chief whether they had a blood relationship, Sione explained that back in the 1960s when he was a schoolboy, his father, Noa, had told him that his (Noa's) mother, Pele, and 'One'one had 'a respect for each other' and, for this reason, Noa told Sione to take care of 'One'one. The Land Assessor has explained that in Tongan custom the expression 'a respect for each other' means that they were distant relatives; in many cases so distant that the exact connection may be difficult to define.

[14] Mr Niu described the expression in Tongan terms as follows:

'Also living at Ngele'ia at the time was Mele Finau, who, in the Tongan custom, was in respects (faka'apa'apa) to 'One'one and vice versa. In the Tongan custom that is the same respect that is kept between a brother and a sister. Often, and it is not uncommon, the exact relationship is not known except it is said to exist from relationship several generations in the past. Nevertheless, it is kept and respected by the present generation as was in the case of Mele Finau and 'One'one. Mele Finau's son, Noa Finau, told his own son, Sione Noa Finau of it, and he would send Sione on many occasions with food for 'One'one.'

[15] Sione Finau described how, after receiving the direction from his father, he and his older sister would regularly take food to 'One'one. Apart from the distant relationship through his paternal grandmother Pele, Sione was also able to point out through a family tree produced as an exhibit how his own mother, Hevaha, was a sister of 'One'one's son in law, Manu.

[16] Sione went on in his evidence to explain how one day in 1985 his mother, Hevaha, received a message from 'One'one to 'come over and choose a piece of land for herself because he was going to subdivide.' Sione said that he went to Fangaloto with his mother and they met with 'One'one and 'One'one's son and heir, Mosese. Hevaha selected the area of land she wanted to live on -- it was slightly higher than the surrounding land -- and the corner boundaries of the allotment she had chosen were marked out with four sticks. That same year, Sione cleared the bush off the allotment and began building what was referred to in evidence as the original Tongan fale made of Pola (plaited coconut leaves).

[17] The Tongan fale was completed in 1986 and that same year Sione, his wife and children along with his parents moved and began living on the allotment at Fangaloto. By referring to the diagram before the court, Sione was able to identify exactly where he had built the Tongan fale, the kitchen and the well. They were all situated on that area of land which now makes up the plaintiff's Lot 18.

[18] Sione then described how in 1990 he built the second house made of plywood which the family moved into but that soon decayed and so in about 1992 the existing dwelling house made of permanent materials was constructed. Sione's mother had joined a development group working with the American Peace Corps and the Peace Corps actually assisted the family in funding the new dwelling house. Again, by reference to the diagram before the court, Sione was able to describe the positions where the plywood house and the permanent dwelling house had been built. As it happened, the plywood house was erected on Lot 18 and the permanent dwelling house and water tank were built on Lot 17.

[19] 'One'one died in 1990. At some stage between 1985 and the date of his death, the precise point in time was not identified in evidence, 'One'one told Sione that Mosese, his son and heir, would deal with the matter of getting the allotment transferred to him (Sione). Although that was hearsay evidence, I accept that an assurance of that nature was given. It was confirmed in correspondence before the court.

[20] Sione said that the first indication he had of any other claim being made to the land came in 2003. He said that sometime during that year he received a letter from a law practitioner, Lesina Tonga, who was acting for Harry Sinclair, the widower of Ana Sinclair. The letter was hand delivered to Sione by a woman who may have been Ms Tonga and it required him to vacate the land because work was being carried out to transfer the allotment to the widower and children. The letter was produced in evidence. It is actually dated 5 June 2004 and I accept that Sione was mistaken in saying that he had received it in 2003. He also told the court that before he received the letter from Ms Tonga a man, who he could not now identify, confronted him and said that he had come for the allotment. Sione told this person to leave and he did so. When that evidence was put to the plaintiff in cross-examination, he recalled the incident and confirmed that the man who had entered onto the property was his brother, Penitikelu Tupou. The plaintiff told the court that Sione Finau had chased his brother off the property with a bush knife. According to the plaintiff, that particular incident had occurred in early 2004.

[21] Returning to the letter from Ms Tonga, Sione said that after he received it he went to see Mosese. In cross-examination by Mr Sisifa, the witness was asked about Mosese's reaction. Sione said that Mosese told him to go back and stay on the allotment because he would go to the Lands & Survey Office and deal with it.

[22] At this point, I should refer to an earlier incident between Sione and Mosese which was also dealt with by Mr Sisifa in cross-examination. Sione had given evidence about how 'One'one had assured him that his son, Mosese, would carry out all the work that was required to have the allotment Hevaha had selected transferred to him (Sione) and how at one point Mosese had told Sione that the allotment, using Sione's language, 'belongs to us'. Mr Sisifa asked when that assurance had been given and Sione replied that it was in 1987 after the surveyors had carried out their work on the subdivision. Sione said that he had gone to see Mosese about the surveyors' visit to the allotment and Mosese on that occasion had reaffirmed that the allotment would be given to him. Sione stressed a number of times in the course of his evidence that he had no knowledge of legal matters or the workings of the Lands & Survey Department but he trusted Mosese.

[23] Mosese was not called as a witness. I accept that the defence had made efforts to try and trace his present whereabouts but those efforts were unsuccessful. The court was left with the impression from the evidence that these days Mosese, who is now in his 60s, is something of a drifter. Sione said that he had last seen him near a market approximately 1 month before the hearing.

[24] Sione gave evidence about being confronted by the plaintiff in early January 2005 and being shown his (the plaintiff 's) deed of grant. On 11 January 2005, Sione wrote to the Minister of Lands. As translated, the letter reads:

'FANGALOTO

Tongatapu

11 January 2005

To Hon Minister,

Lands and Survey Department,

Nuku'alofa

Hon Minister,

I write this letter with sincere respects to You.

The reason for disturbing you is a problem concerning my town allotment at Fangaloto Kolofo'ou which has the following history.

My grandfather Tevita 'One'one Kamea settled us his grandchildren on his tax allotment at Fangaloto in 1985. I shift then and lived on this allotment in accordance with his allocations and continued caring for him. Tevita 'One'one Kamea had of course advised us together with his heir son Mosese Kamea concerning our individual allotment and he advised Mosese not to change the allocations which he had made, and so we each began to care and develop our individual allotments. We trusted Mosese because he repeatedly told us not to worry about anything because he would later on do everything. At this time Tevita 'One'one Kamea was old and was at the stage he was blind and did not know how we were living. He finally died in about 1990. We again reminded Mosese about our individual allotments, and he again told us not to worry about anything and to leave it to him to do everything later. We were then content to continue after the death of our grandfather (Tevita 'One'one). It got to a stage I was aware that surveyors came and planted survey pegs on the allotment on which I was residing.

I went to Vava'u on a family obligation but at that time the surveyors came and planted the pegs on my allotment which I had kept and on which I have resided up to now. I returned from Vava'u and again went to Mosese and his reply was like this, Sione your allotment has already been surveyed and be content that everything is finished.

Hon Minister, forgive me but that is how foolish I have been, to have lived contentedly for these 20 years without any suspicion that there was any problem relating to this allotment. I only became aware of it when a woman came to see me last year. I did not know who she was and gave me a letter of a lawyer in connection with my allotment. From that, I then became aware that from the surveying which had been carried out my allotment was leased by one Ana Sinclair. From the allocation I received and which I kept, it became clear that my dwelling house is situated on the area which is leased by Ana Sinclair, and my kitchen and the trees I had planted were on the adjoining lot. I have just realised from a letter from another lawyer which I received yesterday 10/01/2005 that that lot was leased by one Mele F. Borman and which has been now registered by one Inoke Tonga Tafa.

Hon Minister, when the letter from the first lawyer was received I went to Mosese as he had resided with us at Fangaloto but he had shifted and lived in the east (Hoi). I looked for and found him at Hoi. I was most upset when we met that I almost did something to him. But he said for me to be content because he would come later and will go into the matter.

I then came and found out everything concerning my allotment from the map drafting office. Accordingly Hon Minister I am content to shift from the area which has been registered by Inoke Tonga Tafa. But I'm not satisfied with the lease of the lot of which I have my dwelling house. As to that lease, the leaseholder never once did anything on this land, and that is why I am disturbing you.

I forward herewith the letters of the two lawyers concerning the two lots of this allotment. I await your final decision.

Yours respectfully

(signed)

Sione Finau'

[25] That letter was written by Sione Finau before he had taken any legal advice in the matter. The response from the Minister's office came in the form of a letter from the Registrar of Lands dated 23 February 2005 which read as follows:

'Sione Finau

Fangaloto

Nuku'alofa

Sir,

The reason for this letter is to reply to your letter to the Minister of Lands on 11/01/2005 concerning the town allotment at Fangaloto on which you presently reside and look after.

So I convey my great respects to you in order that I convey to you the decision of the Minister of Lands on 10/02/05 concerning your letter. 'For me to inform you in a letter the facts of these allotments' and these are the records shown in the Register.

1. The allotment No.17 Plan 4900 was leased by a woman named Ana Sinclair by lease No. 4697 since 5/11/1987 to expire on 4/11/2037 of which the Government is lessor. That is the lot on which you say you have your dwelling house.

2. The allotment No.18 Plan 4900 (upon which your kitchen is situated) was leased by a woman named Mele Fifita Borman by lease No. 4703 which commenced on 18/11/1987 and will expire on 17/11/2037. Mele A. Borman requested that she cancel the lease and it was approved by Cabinet Decision No.1233 on 28/09/2004. The reason for the cancellation was to enable Inoke Tonga Tafa to apply to have it as his town allotment and that has been registered by Inoke Tonga Tafa on 29/11/2004.

3. You say that you have lived contentedly for 20 years without suspicion of any problem concerning this allotment. I ask that you do not say that because that is a lie, because the surveyors came there and surveyed and you did not try to come to this Office since 1986 to find out about the allocations made.

4. Accordingly I suggest to you it is better for you to shift from the two lots because they have been registered and the Minister will not be able to cancel them. Only the Land Court can do that if you wish to spend to claim the right you claim to have.

Yours respectfully

(signed)

Makakaufaki Matekitonga

Registrar of Lands.'

[26] Sione said that after receiving the letter from the Registrar of Lands he sought legal advice but no action was taken by the practitioner he approached and so he subsequently consulted his present counsel, Mr Niu. On 13 June 2005, Mr Niu wrote to the Minister of Lands:

'Dear Sir,

re: Sione Finau, Fangaloto

I have been instructed by the above named client.

I have been shown a copy of a letter of my client to you dated 11/1/05 and a letter in reply to it dated 23/2/05 from the Land Registrar, Makakaufaki Matekitonga.

In my client's letter, he stated that he was willing to vacate the area which has been registered as Inoke Tonga Tafa's town allotment, but not the area which is registered as the lease of Ana Sinclair. Your land registrar replied on your behalf that my client had to vacate both areas. He in effect called my client a liar and that is not fair because my client is not. My client did complain to Mosese Kamea when he returned from Vava'u and found that the surveyors had surveyed his allotment and Mosese told him that the surveying was for him (my client). My client believed him and it was supported by the fact that no one else came to occupy the allotment or to bother him until last year, when the widower of Ana Sinclair had lawyer Tesina Tonga write to him and lawyer Mo'ale Finau wrote to him for Inoke Tonga Tafa. That was why he wrote to you on 11/1/05.

It is clear that when Mele Borman and Ana Sinclair had their leases registered, the Minister of Lands at the time was not informed of my client's presence on the areas to be leased by them. Had he been aware, he would have consulted my client as to why he was occupying the land. The Minister accordingly proceeded to grant those leases by mistake, that is, upon a wrongful assumption by him that the land was unoccupied.

When you proceeded to grant the area of Mele Borman's lease as town allotment of Inoke Tafa, you assumed that the land was unoccupied or at least by Mele Borman. You were not aware that Mele Borman had never occupied the land or that my client had been in continuous occupation of it before then. You therefore granted Inoke Tafa's allotment to him by mistake, that is, upon your wrongful assumption that the land was unoccupied.

Hon Minister, I am writing to ask that you please recall and cancel both the grant to Inoke Tafa and the lease of Ana Sinclair for the reasons I have stated. In both cases, you and your predecessor have been misled and been mistaken by the failure of both applicants to inform you and your predecessor of the true circumstances of this land.

If I am wrong about these matters, please let me know. I will be grateful for your advice.

Yours faithfully. . .'

[27] In his submissions, Mr Fakahua highlighted the statement made by Sione in the penultimate paragraph of his letter of 11 January 2005 in which he indicated that he was content to shift from the area which has been registered by the plaintiff (Lot 18) but not from the other lot (Lot 17) on which he has his present dwelling house. When Sione was cross-examined about the proposal he resiled somewhat from what was said in the letter and explained that he had been mentally affected by the lawyers' letters he had received and the visit from the police asking him to move off the allotment. As I understand the evidence, however, the police visit did not eventuate until later in the year.

[28] I do not read Sione's proposal to move off Lot 18 as anything other than a proposition which may or may not have resolved the issues between the parties had it been taken up at the time by the officials at the Ministry of Lands. As it turned out, of course, that did not happen. The Registrar's response required Sione to move from both allotments.

[29] In addition to the Registrar of Lands, the court heard evidence from Viliula Mafi, the Assistant Secretary of the Ministry of Land, Survey and Natural Resources. The Assistant Secretary was able to confirm from official records that lots 17 and 18 were originally part of a tax allotment owned by 'One'one. 'One'one surrendered the allotment in two separate stages during the year 1985 and on 18 April 1986 the surrendered allotment was transferred into the name of 'One'one's son and heir, Mosese.

[30] The Assistant Secretary then explained how between April 1986 and September 1988 Mosese, in four separate stages, surrendered all of his land to the Crown apart, that is, from a small area of 1 rood 6 perches which still, apparently, remains in his name. Evidence as to exactly how the subdivision came into being was scant. The Assistant Secretary made no specific reference in his evidence to sections 50 or 53 of the Land Act which deal with subdivisions. It would appear, however, that the blocks of land were subdivided almost immediately after they were surrendered and that Mosese had a significant role in selecting the people who would be allocated lots out of the new subdivisions.

[31] The first block, which was surrendered with Cabinet approval on 23 April 1986, was made up of a total area of 2.7 perches. The Registrar confirmed that lots 17 and 18 were derived from the subdivision of this particular block. In 1987 lots 17 and 18 were then leased by the Crown to Ana Sinclair and Mele Borman respectively for a term of 50 years.

[32] It is clear from the evidence that, for reasons unknown to the court, Mosese reneged on the promise his father, 'One'one, had made and he (Mosese) had repeatedly reaffirmed, that the whole of the allotment (comprising the present lots 17 and 18) would be transferred to either Sione's parents or to Sione himself. For his part, Sione trusted Mosese and that misplaced trust endured over a period of some 20 years. When asked by the court how he had viewed the title position to the allotment immediately prior to 2004/05, Sione said that he understood that the land was still in Mosese's name but at some stage Mosese would give it to him as promised. As Mosese is not a party to the proceedings and as he did not give evidence, the court is unable to understand or even speculate on his motives for what would appear to be a deliberately orchestrated deception which ended up spanning in excess of two decades.

[33] I accept Sione Finau's evidence on all these matters. In general, I found him to be a thoughtful and conscientious witness. I also accept that, despite the rather tenuous links, he always treated and regarded 'One'one as his grandfather.

[34] I am further satisfied that Sione's false sense of security based on Mosese's oft repeated misrepresentations were exacerbated in no small measure through the failure of the two lessees, Ana Sinclair and Mele Borman, to reside on their leased lots or use the land in any way during the 20 years in question. Mr Niu put it to the Registrar of Lands in cross-examination that the lessee of Lot 18, Mele Borman, had effectively abandoned the land in breach of one of the specific covenants contained in the standard form of lease. On the evidence, that would appear to have been the position but the abandonment allegation was never pleaded and, in any event, the lease provides that a breach of such a covenant simply allows Cabinet to terminate the lease. The breach does not operate so as to provide a non-party to the lease with a defence to an eviction action.

Submissions

[35] In his closing submissions under the heading, 'Internal Migration and natural growth -- lawful occupation', Mr Niu submitted that, 'it was and is normal and natural for people to move from one village, island or estate to another within the Kingdom and it was customary for a holder of an allotment to allow such people, especially relations, in-laws and friends to occupy part of his allotment or estate.'

[36] Counsel went on to submit that such occupations were not unlawful but lawful in that they were recognised by section 8 of the Land Act (Cap 132) which provides:

'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 . . . .'

(emphasis added by counsel)

Mr Niu submitted that the words highlighted recognise that a person may reside on either an hereditary estate or Crown land 'lawfully' even though he does not hold a deed of grant.

[37] Mr Niu accepted that a person would not be 'lawfully' in occupation if he was an alien (s.15 of the Land Act) or if he had been refused permission by the estate holder to reside on the land (s.35 of the Land Act) but neither of those provisions had any application in the present case. Mr Niu also pointed out that the Minister of Lands did not have the power of an estate holder under section 35 of the Land Act to refuse permission to any person lawfully residing on Crown land by permission of the previous allotment holder.

[38] The basic proposition Mr Niu advanced under this head is consistent with the decision of the Privy Council in Tu'i'afitu and Foueti Halalilo v Mesui Moala (1956) Tonga LR, Vol 11,104, where it was held that, 'whilst registration is evidence of ownership, it is not always necessary to prove registration before ownership can be established.'

[39] Crown counsel did not take issue with any of Mr Niu's submissions on this issue and Mr Fakahua also appeared to concede the legal submissions but he argued forcefully that the principles had no application to the facts of the present case because neither Sione Finau or the defendants had ever been granted permission by 'One'one and Mosese to reside on the land.

[40] Mr Fakahua challenged the evidence relating to 'One'one as hearsay and he also made the point, which he made repeatedly throughout his submissions, that Mosese was not called as a witness by the defendants to confirm their evidence. As to the hearsay point, this Court has traditionally recognised that land cases constitute something of an exception to the hearsay rule. Thus, in Na'ati v Motu'apueka (Land Court, L 3/96, November 1998) Lewis J. said:

'Much of the evidence called on both sides here, would ordinarily 500 be inadmissible on the basis that it offends the rule against hearsay created by section 88 of the Evidence Act (Cap 15). However, I accept the submissions of counsel that in Tofia cases in this jurisdiction and by parity of reasoning, in all claims determining title to land, an exception exists. The basis for the exception to the hearsay rule may be found in Kalaniuvalu (Noble) v Minister for Lands (1937) Tonga LR Vol 11, 40 and in To'a v Veikune [PC] Tonga LR 1974-1980, 107. I say no more about the admissibility question save I admit the evidence in issue.'

On the same basis, I admit the hearsay evidence in the present case all of which I found credible and reliable.

[41] The point Mr Fakahua made about Mosese not being called as a witness, does not advance the plaintiff's case. As I have already indicated, I found Sione Finau to be an honest witness. I accept what he told the court in relation to 'One'one and Mosese. There is no property in a witness and if the plaintiff wanted to challenge Sione's evidence then he could have called Mosese. There is an undated letter in the consent bundle of documents from the plaintiff's legal adviser to Sione Finau referring to an agreement with Mosese involving the plaintiff and the plaintiff gave evidence that he had met with Mosese in April 2005. Mr Niu could well have redirected Mr Fakahua's question to the plaintiff. Why did the plaintiff not call Mosese to rebut the defendants' evidence if he considered that Mosese had something useful to contribute to the case?

[42] Mr Niu then went on to make submissions regarding the practices that had developed over the years in relation to the surrender of allotments. He made the point that although an allotment surrendered by an allotment holder from Crown land will revert to the Crown, the Minister of Lands, in consultation with the ex-holder, will ensure that the allotment is then granted to the person nominated by the ex-holder. Mr Niu submitted that in accordance with this accepted practice, 'One'one had allocated 1r. 20.1p of his tax allotment to Sione Finau and, 'thereupon Sione became a lawful occupier and was lawfully residing upon 'One'one's tax allotment which was on Crown land.'

[43] Crown counsel conceded the practice as outlined by Mr Niu but, both he and Mr Fakahua, took issue with Mr Niu's statement that 'One'one had promised the allotment upon its surrender to Sione Finau and counsel stressed that there was no evidence that 'One'one had ever conveyed such an intention to the Minister.

[44] In reply, Mr Niu accepted that there was no evidence before the court that 'One'one or his heir had informed the Minister that the allotment was intended to be allocated to Sione but he submitted, 'it is equally true that there is no evidence that 'One'one ever allocated or intended that the portion was to be halved between Mele Boorman and Anna Sinclair either.'

[45] There is substance in both submissions but, of course, the onus of proof is always on the party making the particular allegation. There is no documentary or other evidence from the Lands Office on the issue either way but, significantly, I repeat that I accept Sione Finau's evidence on these background matters.

[46] Mr Niu referred to the official form of application for a grant of an allotment emphasising that it included a declaration that, 'there is no impediment to prejudice this grant.' The particular application form used by the plaintiff in the present case was not produced but, in any event, I do not see how the reference to this form assists the defendants. If the declaration of 'no impediment' was signed by the plaintiff then I could appreciate the relevance of the form because I am satisfied that the plaintiff was aware that the land was occupied by the defendants (an impediment) prior to the lodging of his application form. But, as Mr Niu acknowledged, in the case of Crown land, the declaration of 'no impediment' is to be signed by the Minister of Lands which appears to be a strange procedure indeed when the application is directed to the Minister. The declaration would be more meaningful, surely, if it was required to be signed by the applicant for the grant.

[47] Mr Niu also made submissions regarding the surveyors who had surveyed the allotment back in about 1987 and he asked the rhetorical question, why did they not inform the Minister at the time that the land was occupied. He submitted that their failure in this regard, 'was the Minister's failure as well.' In response, Crown counsel speculated that if Sione Finau was 'occupying the allotment at the time, the surveying team would have reported his presence and occupancy to the Minister of Lands.'

[48] I have found as a fact that Sione Finau and his family were occupying the allotment at the time the survey was carried out. I also accept that upon learning of the survey, Sione inquired of Mosese as to the reason for the surveyors' visit and he was led to believe by Mosese that they were surveying the land so as to identify the precise boundaries of his (Sione's) allotment. No witness was called from the survey party and no documentation was produced from the Ministry of Lands which recorded any aspect of their visit to the allotment. I am not prepared to speculate on the allegations made in the respective submissions relating to that historical piece of evidence.

[49] Finally, against that background, and after referring to several reported Land Court decisions, Mr Niu advanced his principal submissions which perhaps can be summed up in these two propositions: (1) that the grant to the plaintiff was unlawful because it had been made, in the mistaken belief, that the allotment was vacant whereas it was not; and, (2), in counsel's words, 'the plaintiff was aware that Sione Finau had a competing claim to the allotment and ought to have informed the Minister of it or informed Sione of his own application for the allotment so that Sione was afforded an opportunity of being heard before the Minister decided the plaintiff's application. This was a breach of natural justice and it was caused not only by negligence on the part of the Minister to inspect the land to be granted but on deliberate omission by the plaintiff to inform the Minister or his staff.' I will need to deal with these submissions in greater detail.

The law

[50] The principles relevant to any consideration of an application to set aside a registered deed of grant are now well documented and have been expressed in these terms: until it is established to the contrary, the court will presume that the register is correct. Registration is final unless it has come about as a result of an error of law (i.e. is contrary to the Act) or as a result of fraud, mistake, breach of promise made by the Minister or breach of the principles of natural justice.

[51] There is an obvious close correlation between the principles thus expressed, which have been developed in the Land Court jurisdiction over many years, and the more familiar and well-recognised principles applicable to judicial review proceedings. Although the principles in both jurisdictions have developed separately, it seems to me that the time has come when the position should be regularised so that whenever this court is called upon to determine the legality of decision-making powers exercised under the Land Act, it should apply the same tried and tested judicial review principles that the courts in other jurisdictions apply when confronted with similar challenges. There is nothing in the Land Act or in the rules of court which would prevent this court from exercising the judicial review powers enjoyed by the Supreme Court.

[52] The present action, of course, has not been brought by way of review proceedings and the challenge to the legality of the Minister's actions has been made, not by a plaintiff, but by a defendant by way of counterclaim. The courts have, nevertheless, recognised that a defendant is entitled to challenge the validity of an authority's decision in this way and the issues can still be determined by application of judicial review principles. In Wandsworth London Borough Council v Winder [1984] UKHL 2; [1984] 3 All ER 976 the respondent challenged, by way of counterclaim, the legality of a local authority's decision to increase his rent. The respondent accepted that judicial review would have been a more appropriate procedure for the purpose but he maintained that it was not the only procedure open to him and that he was entitled to wait until he was sued by the appellant and then to defend the proceedings by way of counterclaim. That approach was upheld by the House of Lords. Wandsworth was later followed, after extensive discussion of the authorities, in Doyle and others v Northumbria Probation Committee [1991] 4 All ER 294.

Conclusions

[53] I deal first with Mr Niu's final submission alleging a denial of natural justice. In Hakeai v Minister of Lands & ors [1996] Tonga LR 142, 143, the Court of Appeal stated:

'It is clear law that a person whose rights, interests or legitimate expectations are imperilled by an official's consideration of some other person's application will generally be entitled to a fair opportunity to be heard before a decision adverse to him is made. This is what is known as natural justice . . . Whenever the Minister has competing claims for the same land, he should be careful to ensure that both sides get a hearing -- not, of course, as in a court, but an opportunity to put each point of view before a decision is made.'

[54] There is, thus, clear authority that the principles of natural justice apply whenever a Minister is exercising his powers in relation to the granting of allotments. The problem the defendants' face, however, in seeking to rely upon this principle in the present case is that, as Mr Sisifa submitted, in so far as the Minister is concerned, there was no competing claims to the allotment at the time he made his decision.

[55] Mr Niu submitted that the plaintiff was aware of the true position and he ought to have informed the Minister that there was a competing claim. I accept the first part of that proposition but no authority was cited to support the suggestion that the plaintiff was under some type of legal obligation (as distinct from a purely moral obligation) to disclose the true position to the Minister or the Minister's officials. It would have been quite different, of course, if the 'no impediment' declaration in the official application form for a grant had had to be signed by the plaintiff personally but that was not the case.

[56] The question posed by Mr Sisifa, which has not been satisfactorily answered by the defendants, is how could the Minister be expected to grant the defendants a hearing in accordance with the natural justice requirements when, at the time he was considering the plaintiff's application for a grant, he was completely unaware that there was a competing claim. It is easy to be wise with the benefit of hindsight but the circumstances to be considered are those that existed at the time the Minister made his decision.

[57] As Brennan J. observed in the Australian High Court decision of Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 627:

'What the principles of natural justice require in particular circumstances depends on the circumstances known to the repository at the time of the exercise of the power or the further circumstances which, had he acted reasonably and fairly, he would then have known. The repository of a power has to adopt a reasonable and fair procedure before he exercises the power and his observance of the principles of natural justice must not be measured against facts which he did not know and which he would not have known at the relevant time though he acted reasonably and fairly.'

[58] I respectfully agree with that statement of law. In my view, the defendants' challenge to the registration of the deed of grant based on a denial of natural justice has not been established.

[59] Just as I have rejected the breach of natural justice submission, I also reject the defendants' allegation of negligence on the part of the Minister in failing to carry out an inspection of the land. The position was that the two pieces of land making up the allotment in question had been leased to Mele Borman and Ana Sinclair respectively. Mr Sisifa accepted that the Minister was aware that they both resided overseas but the Minister had before him a surrender of lease signed by Mele Borman and an application by her nephew, the plaintiff, for a grant to him of the land in Mele Borman's lease. Mr Sisifa acknowledged that the Minister had assumed that the land in question was vacant. In his reply, Mr Niu was very critical of the admission that the Minister had made such an assumption but, in the absence of any indication whatsoever of a competing claim at that stage, it does seem to me that the assumption made by the Minister was both understandable and reasonable. The defendants have failed to persuade me that there was any negligence on the Minister's part in failing to have an inspection carried out of the land in question before approving the grant to the plaintiff.

[60] I would add that neither the breach of natural justice allegation or the allegation of negligence on the part of the Minister were pleaded by the defendants. Neither the plaintiff nor the Minister took the point, however, and I have, therefore, dealt with the issues on that basis.

[61] I turn now to the issue of mistake which was fully pleaded and fully explored by counsel in their submissions. The essence of the pleading is that the Minister of Lands made the grant to the plaintiff on wrong principles by mistake in that he assumed that the land was vacant whereas it was not -- it had been occupied by Sione Finau and his family for 20 years. The question is whether that mistake is sufficient to have the deed of grant set aside. In considering this issue, I find guidance in some of the principles that have been applied in the judicial review jurisdiction I have referred to earlier.

[62] While traditionally there has been some reluctance by the courts to review inferential and factual matters as opposed to questions of law, that approach has changed over recent years and mistake of fact is now an accepted ground of review. See, for example, Fowler & Roderique Ltd v Attorney General [1987] NZCA 92; [1987] 2 NZLR 56 (CA) where Casey J. accepted factual error as a ground for review if the information the decision-maker acted upon was clearly incorrect and Ali v Deportation Review Tribunal [1997] NZAR 208 at 218, where Elias J. (as she then was) accepted that a ground of review exists where there is a 'misunderstanding or ignorance of an established and relevant fact.' Elias J. cited in support the English Court of Appeal decision of Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1976] UKHL 6; [1977] AC 1014. The authorities show that the courts will assess the facts at the time of the decision-maker's decision -- even if the decision-maker lacked actual knowledge of them.

[63] One of the submissions made by Mr Niu was that the land in question was not land 'available' for grant because of its occupation by the defendants. Reference was made in this regard to the decision of Webster J. (as he then was) in the case of Vai v 'Uliafu [1989] Tonga LR 56. Vai's case was concerned with the interpretation of section 50 of the Land Act which sets out the rules for allocating allotments from hereditary estates. Subsection (a) states that an applicant shall have his allotment out of 'land available' for allotment in that estate. The judge held that 'land available' in that context did not include land occupied by other people.

[64] The present case is not concerned with land in an hereditary estate but with Crown land and there is no similar rule for the allocation of allotments from Crown land. Why that should be is somewhat puzzling. It may have been simply an oversight on the part of the legislature.

[65] On any view of the facts, the mistake in the present case is not an insignificant or insubstantial mistake. It is obviously a relevant factor of great importance that land which the Minister believed to be vacant had in fact been occupied by other people for 20 years.

[66] While the Land Act does not expressly state that in allocating an allotment out of Crown land the Minister is required to ascertain whether the land in question is 'available' (as is the case with hereditary estates under section 50(a)), I, nevertheless, consider that upon a consideration of the subject matter, scope and purpose of the Act, such a conclusion must inevitably be implied. As Mr Niu highlighted, section 8 of the Land Act actually recognises that a person can be in lawful occupation of Crown land without holding a deed of grant. To have a situation, therefore, where the Minister of Lands is able to make a grant of an allotment in total disregard for the rights of a long-term lawful occupant of the same piece of land, is quite untenable and is a recipe for lawlessness. I cannot accept that such a consequence could ever have been intended by the legislature.

[67] In Fifita v Minister of Lands (1972) Tonga LR Vol III, 45, the Privy Council, with reference to the Land Act, spoke about the need to give the statute a reasonable construction so as to avoid an 'unjust or totally unreasonable consequence' which might otherwise follow. I accept that approach and applying it to the matters in contention in the present case, it seems to me that upon any construction of the Land Act, before making a grant, whether it be from an hereditary estate or Crown land, the Minister is required to have regard to whether or not the land in question is available. If he makes a mistake on this issue, whether as a result of an incorrect assumption on his own part or otherwise, the consequence will be that he has failed to take a material fact into account and, in those circumstances, this court will intervene and grant relief.

Orders

[68] For the foregoing reasons, I uphold the defendants' claim that they are entitled to have registration of the plaintiff's deed of grant set aside. In terms of the defendants' prayer for relief, I dismiss the plaintiff's claim and order the cancellation of the registration of the deed of grant in favour of the plaintiff dated 29 November 2004 (Tohi 374 Folio 13). No other orders are sought.

[69] The defendants are also entitled to costs. In his submissions, Mr Niu seeks costs against the Minister but in their prayer for relief, the defendants seek costs only against the plaintiff. I will allow the defendants the opportunity of clarifying their position by filing a memorandum within the next seven days. Depending upon the response, I will then allow appropriate opportunity for a reply.