Havea Folau will have his name registered in a town allotment at Vaini village in Tongatapu, the Lord Chief Justice has ruled in the the Land Court of Tonga in Nuku'alofa on 18 April.

The Chief Justice ruled that the Minister of Lands had no power in this circumstance to cancel the grant or make a grant of this same piece of land and register it in the name of another person.

The case was between the plaintiff Folau and three defendants Johnny Taione, Lord Ma’afu and the Minister of Lands.

The plaintiff alleged that this town allotment was granted to him in February 1997. It was never registered in his name.

Eighteen years later, in 2015 the current Minister of Lands Lord Ma’afu granted and then registered the land (Deed of Grant Tohi) in the name of the first defendant Johnny Taione. Folau said that the Minister did not consult him and that the land was not available for grant to Taione, so the grant made to him was unlawful and should be declared null and void.

Folau then sought an order requiring the Minister to cancel Taione’s registration and register the land in his name.

Chief Justice O.G. Paulsen in his ruling declared that that the grant and registration in Deed of Grant Tohi in the name of Johnny Taione to be unlawful and invalid and ordered that it be cancelled.

Facts

The court had heard that the allotment is situated in Vaini. In 1997, the late noble Ma’afu was the estate holder. He was father of the present estate holder Lord Ma’afu who is also the Minister of Lands.

Folau was born in Vava’u, had moved to live at Vaini in the 1960s and taught at Beulah College, and had become acquainted with the people at the village. Since 1974 he migrated to New Zealand.

Among other things, in 1990, a daughter of the late noble went to New Zealand to raise money for a sound system, which was unsuccessful. Folau did his own fundraising and collected NZ$11,000 acquiring the sound system. The noble was so pleased he wanted to gift him from an area between Beulah College and Hu'atolitoli Prison, which was in the process of being sub-divided into town allotments.

In 1996, the sub-division was completed and the late noble forwarded to him in New Zealand, an application form for the allotment. 

The Chief Justice said the late Noble Ma'afu as estate holder had already signed the application form and that signature was dated January 8, 1996.

The boundaries applied for had effectively been surveyed and pegged along with allotments of Taufa Pulu and Sione Taione located on the north and southern side. Folau signed the form and forwarded it along with his birth certificate back to Tonga where they presented it to the Land Office, when Lord Fakafanua was the then Minister of Land.

Folau represented by Laki Niu, argued that the allotment was lawfully granted to him on February 6, 1997 when the Minister directed that it be surveyed and a deed of grant was drawn up for the registration of the land in his name. He said on the date of his application he had satisfied all other requirements of the Land Act so as to be entitled to receive a grant of the allotment, he said.

Meanwhile, in 2000 Sione Taione who owned and was occupying the attaching allotment to the south of the said land, asked Folau to let him use and maintain it and he agreed. Taione did so from 2000-2015.

Taione had also telephoned Folau to ask to buy the land from him and he said no.

In December 2013, Folau retired and planned to return to Tonga to build a house on the allotment and live there during his retirement.

Cancellation 

The Chief Justice said without Folau's knowledge on June 24, 2014 Sione Taione signed and then lodged with the current Minister of Lands an applicant on behalf of his son, Johnny for the allotment.

On June 26, 2014 Lord Ma'afu signed his consent as estate holder to the grant of the allotment to Johnny. On August 6, acting in his capacity as Minister of Lands wrote to the Secretary of Lands and Natural Resources stating to cancel Folau’s application for the allotment and to process the application of Taione instead.

The reasons given were there was too little land for the people wanting it within his estate, Taione did not hold a town allotment but had assisted to maintain it while Folau lived in NZ and had not used the land for 18-years and in the Minster’s view did not value the grant. Folau was unaware of any of this.

The Minister of Lands on October 23, 2014 approved the recommendation to grant the allotment to Taione and signed the savingram.

Folau who was only informed later came to Tonga in April 2015. He requested with his lawyer for an appointment with the Minister to discuss the matter but was refused to any meeting with no explanation given.

Taione argued through his counsel Sifa Tu’utafaiva that the land was never granted to Folau and therefore was available to be granted to him.

Lord Ma'afu represented by ‘Aminiasi Kefu argued time barred as a defence and denied that the grant to Taione was in breach of the rules of natural justice because Folau had no right to be heard on Taione's application for the land as the land was not registered to him.

Kefu also counsel for the Minister argued that the land was never granted to Folau on February 6, 1997 or any date and it was open to the estate holder to withdraw his consent to Folau’s application and to the Minister to implement the wishes of the estate holder before the grant to Folau was made.

"The argument for the Minister was that Folau was never entitled the grant of any land in noble Ma'afu's estate because he was at all relevant times resident in New Zealand and not lawfully resident in the estate as required by section 50 of the Land Act."

Grant

The Chief Justice said in this case no opportunity was given to Folau to be heard before the Minister decided to grant the land to Taione and refused to meet him and his lawyer.

Although, the Minister was influenced by the fact that Taione had assisted to maintain the land it is not at all clear that he understood that this was under an arrangement between Taione and Folau in return for the use of that land or that Taione had sought to buy it.

Kefu said the Minister had no obligation to consult Folau arguing that in section 50 prohibited the making of a grant to Folau so that it follows he could have no legitimate interest that the Minister was required to consider.

“I do not accept that section 50 prohibited a grant to Folau and reject this argument.”

The Chief Justice came to the conclusion that Folau had established his entitlement to the land on the basis it was granted to him in 1997.

He said in those circumstances the Minister had no power to cancel the grant or to make a grant of the land and register it in the name of Johnny Taione.

"I declare that that the grant and registration in Deed of Grant Tohi 354 Folio 93 in the name of Johnny Taione to be unlawful and invalid and I order that it be cancelled. I also order that the said land is registered in the name of Folau.”

The plantiff was entitled to costs against all of the defendants which to be fixed by Registrar if not agreed.