By Linny Folau
An appeal by the Minister of Lands against a Land Court’s ruling that he made a mistake when issuing a deed of grant to a tiny piece of land in 'Utungake, Vava'u to a leaseholder, instead of the adjoining owner, was rejected by th Appeal Court recently.
Appeal judges White, Harrison and Dalton in a judgment on 20 November in Nuku'alofa stated that the appeal concerned the ownership of a total of two perches.
Mr Kiva Kaufusi (first respondent) is the registered holder of a town allotment, Lot 86, at ‘Utungake, within Lord Tuita’s estate. The land comprised one rood when a deed of grant was registered in his favour on 1 January 1998. The adjacent town allotment known as Lot 87 then comprised an area of one rood 0.47 perches and remained within Lord Tuita’s estate.
The Court noted, “The question was whether this area was mistakenly included in a deed of lease granted by the Minister of Lands to a leaseholder, the second respondent, Andrew Clarke, when it should have been included within the grant of an area of land held by the adjoining owner, Kaufusi."
Acting Lord Chief Justice Tupou, sitting in the Land Court with an assessor, found that the Minister’s decision to grant the lease was mistaken because the area of two perches was erroneously included in Mr Clarke’s grant.
“That Court made various consequential orders, effectively ordering the Minister to reduce by two perches the area included in Mr Clarke’s lease and correspondingly increase the size of Mr Kaufusi’s grant by the same two perches.
“However, Mr Clarke did not take any steps to defend Mr Kaufusi’s claim in the Land Court, and the Appeal judges accepted that it was necessary for the Minister to put before the Land Court all the Ministry’s evidence about its processing of Mr Kaufusi’s application.”
The Appeal Court stated that it was also not satisfactorily explained to them why the Minister assumed the role of contradictor at the hearing rather than adopting the orthodox status of abiding the Land Court’s decision or why he elected to pursue the partisan role of appealing against the Court’s decision.
In a long drawn out order of events started from 1 September 2003, when Lord Tuita signed an application by Mr Kaufusi to have the small area of 14 perches from Lot 87 added to part of Lot 86 ( the first or original application).
The area was shown on an attached sketch map. The Ministry accepted that Mr Kaufusi was assisted by its staff at Vava’u when later applying for registration of the amending deed of grant. Later, Kaufusi learned that the Ministry had never processed his third application by misfortune. While, Mr Kaufusi was holidaying in Vava’u in 2018, Mr Clarke lodged a complaint with the police.
Mr Clarke apparently alleged that Mr Kaufusi and his family had trespassed on his land and the Police took Mr Kaufusi into custody for a short time. It was only then that Mr Kaufusi discovered that the new lease granted to Mr Clarke included the extra two perches from Lot 87 for which he had earlier applied.
In the meantime, the Land Court’s judgment was based on firm credibility findings in Mr Kaufusi’s favour.
The Court was satisfied that the correct area, which Lord Tuita intended to grant Mr Kaufusi was all that land shown on the sketch maps and running in parallel and equal in width to Lot 86, in a straight line to the end of Lot 87 and consisting of an area of 20.2 perches. It was also satisfied also that Mr Kaufusi did not suggest that area on his own account.
Instead, he was furnished with the necessary information by Ministry staff. He did everything he was required to do with the Ministry’s assistance to have the consented area described as 20.2 perches added to Lot 86. The Court rejected the Ministry’s defence that Mr Kaufusi failed to lodge his third application for the additional area.
The Land Court was then satisfied that the registration of the lease of Lot 87A to Mr Clarke was the result of the Ministry’s mistake in including within the leased area the additional two perches which was the subject of Mr Kaufusi’s third application.
In particular, that Court found that the decision to register Mr Clarke’s grant including the disputed two perches was mistaken in that:
the decision was made in ignorance of Mr Kaufusi’s application which was originally filed on or around 18 April 2006
the Ministry staff failed to consider the sketch maps on Mr Kaufusi's applications, which had been provided by Ministry staff and which ought to have alerted them to the fact that Mr Clarke’s lease for Lot 87A was extending onto the area intended for Mr Kaufusi’s extension
the Minister did not give Mr Kaufusi an opportunity to be heard on the reasons why he should be given priority on the allocation of the disputed two perches and the Minister was unaware or failed to take account of Mr Kaufusi’s application for 20.2 perches from Lot 87.
Appeal fails
The appeal was against four factual grounds of the Land Court’s findings that the Minister was mistaken.
"In conclusion, the Minister’s appeal must fail because he has not shown any error in the Land Court’s factual findings that when registering Mr Clarke’s lease in 2015 his staff knew or ought to have known that Lord Tuita had at least a year earlier approved Mr Kaufusi’s third application including the two contentious perches.
“The Minister could only have succeeded by establishing that the Court erred in accepting Mr Kaufusi’s evidence. By 6 May 2014, on his account, he had lodged with the Ministry the third application consented by Lord Tuita. The third application correctly described the area of land to be transferred as 20.2 perches. The Minister’s mistake was to register Mr Clarke’s lease with the area of land including two of those 20.2 perches, when he was on notice of Mr Kaufusi’s third consented application for a grant of the same area."
The Appeal Court then entered judgment for Mr Kaufusi and ordered the Minister to:
cancel the deed of grant registered in Mr Kaufusi’s name and cancel Lease No. 8831 registered in Mr Clarke’s name
issue Mr Kaufusi a fresh deed of grant for his town allotment, Lot 86, to include the disputed two perches and thereby increasing the total area of his land to one rood 20.2 perches
the Minister must re-issue Mr Clarke’s deed of lease with the previous total area of 22.47 reduced by two perches.
In addition, the Minister was ordered to pay Mr Kaufusi’s costs.
