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Church of Jesus Christ of Latter Day Saints in Tonga Trust Board v Fepale [2009] TOLawRp 26; [2009] Tonga LR 258 (15 June 2009)

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

LA 8/2008

The Church of Jesus Christ of Latter Day Saints in Tonga Trust Board

v

Fepale anors

Andrew J
10 June 2009; 15 June 2009

Practice and procedure – application to strike out – reasonable cause of action – plaintiff had standing – application dismissed

The plaintiff was the lessee of two allotments was in occupation for the past 29 years paying rent. The plaintiff claimed that the original owner of the allotments died in 2003 and as there were no lawful heirs the allotments reverted to the crown. The plaintiff had built a church in lease 3859 and the land in lease 3860 was used as a playground. The plaintiff claimed that it did not know and was not consulted as lessee by the first and second defendants when they applied for the grant of the allotments. Further it was claimed that the Ministry of Lands knew that the plaintiff had valid leases over the allotments but did not consult the plaintiff before granting leases to the first and second defendants. There was an issue as to the granting of allotments where they were lawfully occupied by a lessee. The plaintiff claimed that the grants made by the Minister of Lands to the first and second defendants were invalid. The first and second defendants applied to strike out the plaintiff's action on the grounds that the statement of claim disclosed no reasonable cause of action, and that the plaintiff had no standing (locus standi) to bring the action.

Held:

1. The Court considered that the plaintiff's claim was a legitimate one and one that it was entitled to make. It was a reasonable cause of action based on the circumstances. The interests of the plaintiff were clearly at stake.

2. The plaintiff had the appropriate standing to make the claim.

3. The application for strike out was dismissed.

Counsel for the plaintiff : Mr Niu
Counsel for the first and second defendants : Mr Edwards
Counsel for the third defendant : Mr Kefu

Judgment

This is an application by the 1st and 2nd defendants to strike out the plaintiff's action: There are 2 grounds advanced namely that the statement of claims discloses no reasonable cause of action and secondly that the plaintiff has no standing (locus standi) to bring this action.

No Reasonable Cause of Action

Briefly stated, the decision of the Minister of Lands to grant 2 town allotments to the 1st & 2nd Defendants is being challenged.

The Plaintiff is the lessee of the two allotments in question and has been in occupation for the past 29 years and is paying rent. The Plaintiff's claim is that the original owner of the allotments died in 2003 and as there were no lawful heirs the allotments reverted to the crown. The plaintiff had built a church in lease No.3859 and the land in lease 3860 was used as a playground. The Plaintiff says that it did not know and was not consulted as lessee by the first and second defendants when they applied for the grant of the allotments. Further it is claimed that the Ministry of Lands knew that the plaintiff had valid leases over the allotments but did not consult the plaintiff before granting them to the 1st & 2nd defendants. There is an issue as to the granting of allotments where they are lawfully occupied by a lessee. There appear to an issue as to the granting of an allotment to an adopted son of the landowner. The plaintiffs refer to the authority of 'INOKE FAFA and others, decision of the Court of Appeal in AC 03/2006, decision of the 16th August, 2006.

The Plaintiff's cause of action (as pleaded in clause 15 of the Statement of Claim) is that the grants made by the Minister of Lands to the 1st & 2nd defendants were and are invalid.

The 3rd defendant's attitude to these applications is that it takes a neutral stance as to the conflict between the parties but acknowledges that the questions of law which are raised relate to important issues such that this case may be something of a test case.

I consider that the Plaintiff's claim is a legitimate one and one that it is entitled to make. I consider it be a reasonable cause of action based on the circumstances which have been referred to. The interests of the Plaintiff are clearly at stake.

I consider that there is a proper cause of action and that the plaintiff has the appropriate standing to make this claim.

I would not strike the claim out.

The application is dismissed. Costs of this application to be costs in the cause.