An appeal by an heir trying to claim allotments in Pea was dismissed by Tonga's Court of Appeal, who found that due to his failure to apply for it within the legal time-frame, the allotments were no longer available for inheritance when it reverted back to the estate holder. 

The allotments were later granted by the estate holder to the younger brother who had applied for it.

The appellant was Ka’ili Tu’alau, the older brother of Kalausa (first respondent). They had a dispute as to who was lawfully entitled to succeed these allotments in this estate of Lavaka, after the death of the last registered holder in 2007.

Heir must apply within 12 months after death of last holder

The appellant then failed to apply for the allotments to go to him within the 12-months required by the Land Act, which resulted in the allotments reverting to the estate holder, who granted it to his younger brother, who applied for it.

The appellant then filed a claim with the Land Court that he was entitled to the allotments and was dismissed by Hon Justice Niu sitting with an assessor. This resulted in this appeal.

The Minister of Lands was the second respondent.

Both brothers died

Although, both brothers had since passed away, the Lord Chief Justice ruled in February that the appeal proceed in the absence of counsel representing the estates of the parties, and the appeal would be treated as having been brought by the appellant’s estate against the first respondent’s estate.

The appellant submitted two issues that s 87 of the Land Act is ultra vires principally because it was inconsistent with clause 113 of the Constitution of the Kingdom of Tonga.

The second respondent (the Minister) was obliged to investigate whether there was an heir, after the allotments reverted to the estate holder and before granting registration of the allotments to the first respondent.

The essence of the counsel for the appellant's argument was that clause 113 of the Constitution grants a hereditary right by male Tongan subjects to inherit allotments.

And that the right to allotments by grant is conferred by ss 7 and 43 of the Land Act and by succession under s 82. It was submitted that s 87 of the Act is subject to s 82 and that the right to hold allotments could only be extinguished or terminated when there was no longer an heir. They argued that to the extent s 87 purported to take away that right, it was inconsistent with the Constitution and ultra vires.

Rights to allotments

The Appeal Court did not accept this argument and provided Clause 113 of the Constitution;

Tongan male subjects by birth of or over the age of 16-years may be granted town allotments and tax allotments out of estates granted in pursuance of this Constitution with the consent of or upon consultation with the estate holder and out of the lands of the Crown, by the Minister of Land.

Such allotments shall be hereditary and shall be of such size and at an annual rent as may be determined by law. A widow shall have the right to succeed according to law, to her deceased husband’s tax and town allotments.

Clause 113 may be regarded as foundational to the right to allotments provided for by ss 7 and 43 of the Land Act. Formal requirements for applications to the Minister are prescribed.

The Appeal Court, said once granted every estate and allotment is hereditary according to the laws of succession.

The relevant rules of succession are set out in s 82. There is no dispute that the appellant, as the older brother, would have been entitled to succeed as heir under s 82(c) had he applied for a grant no later than 6 June 2008. There being no application, the allotments reverted to the estate holder by operation of law on that date, said the Court.

"It is evident that the right to succeed to allotments under s 82 is not an untrammelled right. It is conditioned by s 87 on the making of an application by a person claiming to be the heir within 12-months from the death of the last holder of the allotment. This is a strict requirement with no provision for the extension of time."

No longer available to inherit

The Appeal Court also said it was not in dispute that if a law of the Kingdom of Tonga is inconsistent with the Constitution as the supreme law, then it will be void to the extent of the inconsistency.

“But we are not persuaded that s 87 is inconsistent with clause 113 of the Constitution.

“Section 87 does not extinguish or remove a person’s right of succession conferred by s 82.

“Rather, the allotments are no longer available to inherit since they have reverted by law to the estate holder. As submitted by the Solicitor General for the second respondent,, the reversion of land to the Crown or estate holder does not take away the right of a person to apply for the allotment.

“Rather, it allows others (including the appellant and the first respondent) to apply for the grant of the allotments,”  said the Appeal Court.

Confronting the proposition that the absence of the 12-month limit would create significant administrative and practical difficulties by indefinitely extending the time to make a claim as heir, the appellant's counsel submitted that in most cases any such claim would emerge promptly.

"However, the facts of this case clearly demonstrate the lack of merit in this submission. It emerged that no claim was made by the appellant as heir until he issued proceedings in the Land Court in September 2019, more than 11-years after the expiry of the 12-months time limit in June 2008."

In the meantime, the first respondent had applied for the allotments in April 2013 with the consent of the estate holder and became the registered owner of the town allotment in 2017 and the tax allotment in 2018, said the Court of Appeal.

"Our conclusions are consistent with the way in which the rules of succession in which it was held that an application for an allotment in that case after the expiry of the 12-month period was simply an application for vacant land which was processed and granted in the usual way.

“The fact that the grantee’s grandfather had been the registered holder of the land may have influenced the estate holder but had nothing to do with his entitlement to the grant."

The appellant’s argument on the first issue was dismissed.

Minister to investigate

On the second issue of duty to investigate, the appellant's counsel said the Minister was aware that the first respondent had an older brother named Kaili, who was said to be in prison in Pagopago, and submitted that the Minister was under a duty to investigate whether the appellant, as the identified older brother wished to make a claim.

This Court said that in the period after an allotment has reverted to the estate holder under s 87, there may in some circumstances be an obligation by the Minister to undertake an inspection of the land at issue.

"However, this Court held there was no requirement that such an inspection must always be carried out and that the extent of any inquiries and are not persuaded there was any information before the Minister in the present case that required him to make any inspection or inquiry."

To the contrary, the first respondent had been in occupation of the allotments at all material times; he had the estate holder’s consent to the grant; the appellant was said to be in prison in Pagopago; no claim had been made by the appellant as heir at any time since the death of the registered holder some five-years before; and there was little realistic prospect the Minister would make the grant to the appellant rather than to the first respondent.

“There is nothing in s 87 to suggest there is any such duty. To the contrary, s 87 clearly places the obligation on an heir to bring a claim within the 12 month period. It would be a significant shift to find that the responsibility to inquire into possible heirs was effectively transferred to the Minister instead,” said the Appeal Court.

"While we would not necessarily rule out the existence of such a duty in some exceptional circumstances, we observe that the short period of 12-months in which to make a claim under s 87 would militate against the existence of such a duty on workability grounds alone.”

The Court then dismissed the appeal and ordered that the first and second respondents are entitled to costs against the appellant on the appealn the absence of agreement, the Registrar is to fix the costs payable.