By Linny Folau

Kiva Kaufusi was granted a fresh Deed of Grant to his town allotment in 'Utungake, Vava’u after the judge found that it was the Minister of Land’s mistake when he granted the land area in dispute, to his neighbour.

Justice Tupou and Land Assessor, Faiva Tu’ifua delivered a judgment on 21 January in the Land Court in Nuku’alofa against Andrew Clarke and the Minister of Land (defendants).

The court heard that the plaintiff, Kaufusi is the registered holder of the town allotment, under Deed of Grant registered on Book 294 Folio 78 consisting of 1R 00p (lot 86). Next to his town allotment is lot 87 which, at the time he registered his town allotment, was still part of the estate holder, Lord Tuita’s estate. Lot 87 consisted of a total area of 1R 0.47p1. While, Clarke, is the holder of Lease No.8331 of the neighbouring land, lot 87A.

Mr. Kaufusi applied to have his town allotment extended from part of lot 87, in which the estate holder agreed. He then lodged his application for the extension with the Minister.

The judge stated that the complaint concerned the area of 2p claimed to have been deducted by the Minister from the area intended for the plaintiff's extension and added onto Clarke’s lease by mistake. He then sought orders that the Minister correct the area on his Deed of Grant to include the 2p, which was erroneously included in Clarke’s lease. Unlike the Minister, Clarke had taken no steps to defend the plaintiff’s claim.

On the other hand, the Minister denied he ever received an application from the plaintiff for an extension of 20.2p and therefore was not under any duty to hear from him, when he granted the material 2p to the Clarke. It was maintained that the areas for the plaintiff’s town allotment as well as Clarke’s lease was correct, he

In court, Mr. Kaufusi gave evidence and the Minister called Ms. Haitelenisia Penitoni and Mr. Warrick Vea, both from the Ministry of Lands.

“I found the plaintiff’s evidence consistent and unshaken during cross examination. I found him to be a credible witness. Where his evidence differed from that of Ms. Penitoni, I preferred the plaintiff’s evidence. Mr Vea appeared to produce the documents held on the file after undertaking a search of the records for the purposes of this trial.”

Mr. Kaufusi lives in New Zealand and is a vehicle inspector, after migrating there. His town allotment was registered on 1 January, 1998. While, Ms. Penitoni is employed in the LGIS Division of the Ministry of Lands as a section draughtsman, a position she held for 24 years. She was consulted by the plaintiff among others in the Ministry of Lands regarding the extension of his town allotment.

Mr. Vea is a Land Registration Officer at the Land Administration Division employed by the Ministry for 22 years.

The judge stated that on 1 September, 2003, Lord Tuita signed an application by the plaintiff to have an area of 14p3 from lot 87 added as part of his already registered town allotment. It was accepted that the plaintiff was assisted by the staff of the Ministry of Lands.

“It was evident from the information contained in the application that the plaintiff or any ordinary member of the public would not have known the area of the land or that it was contained in Plan 4747B, unless he was assisted by persons at the Ministry with access to that information. Mr. Vea produced a savingram dated 18 April, 20064 in relation to this particular application and attached to it is a map and identified the area required from Lot 87 intended for the plaintiff’s extension.

“That area is marked by a straight line matching the width of the existing allotment on both sides drawn parallel right up to the end of the boundary of Lot 87 facing the plaintiff’s allotment. Mr. Vea could not locate a copy of this application on file. At a later stage, the plaintiff was informed that his request for extension could not proceed owing to an existing mortgage against his allotment. The plaintiff accepted the explanation and waited. The mortgage was discharged in 2012 permitting the plaintiff’s application to proceed,” he stated.

Mr. Kaufusi was then required to return his original Deed of Grant with his application for the extension of 14p6 from Lot 87. 19. In 2013, he was informed by the Ministry that the area intended for his extension was actually 18p and not 14p. A fresh application was prepared which the plaintiff sent to Lord Tuita who approved and signed it.

Mr Vea produced a copy of the application with a letter from Lord Tuita expressing his consent for the 18p to be given to the plaintiff and a sketch map. However, this process hence continued back and forth.

Mistake

The judge stated that this case amongst others unfortunately revealed how a simple application can create extreme consequences for all involved.

"On balance, I believe that the correct area that the estate holder intended to grant the plaintiff was all of that area running in parallel and equal in width to his town allotment in a straight line to the end of Lot 87 consisting of an area of 20.2p. I accept the plaintiff did not come up with that area on his own, but he was furnished with that information by staff of the Ministry. He did everything he was required to do with assistance from the staff of the Ministry to have the 20.2p added onto his town allotment.

“I reject the suggestion that he failed to lodge his application when he was actively being assisted by Mr. Moa and Ms. Penitoni at the time. Further, the Ministry did not have on file, his application for the 14p despite evidence of a savingram on file to the Minister requesting that a survey and map be prepared. It is highly likely in another file like the application for the 20.2p as suggested by Mr. Vea."

The judge pointed out that the deed of grant and sketch maps at pages 27-29 of the court book was given to the plaintiff by staff of the Ministry of Lands to show the area that was taken from the area the estate holder consented to give him from Lot 87.

“Clearly, this correction resulted from his request either to Ms. Penitoni or as a result of his letter of 26 February, 2018. In fact, the Ministry did not issue the plaintiff’s deed of grant until after they had surveyed Clarke’s lease. It ought to have been clear to the Ministry that 2p of the first defendant’s lease was from a part of the plaintiff’s intended extension. They had the sketch maps as early as the application for the 14p in 2003.

“The plaintiff alleged there was a toilet on the disputed land. Mr. Vea, when asked during evidence in chief if he had anything to do with the first defendant’s lease, acknowledged there was a toilet there and photo,” he stated.

The judge ruled that for all the reasons given in the 10 page judgement, she was satisfied that the plaintiff had proven his case.

“I find that the Minister’s decision to grant the first defendant’s lease was mistaken in that:

1. It was made in ignorance of the plaintiff’s application that was originally filed around 18 April, 2006.
2. He failed to consider the sketch maps on the plaintiff’s applications (provided by Ministry staff), which ought to have alerted him to the fact that Clarke’s lease was extending onto the area intended for the plaintiff’s extension.
3. He did not give the plaintiff an opportunity to be heard on why he ought to be given priority on the allocation of the disputed 2p; and
4. He was unaware of the plaintiff’s application for 20.2p from Lot 87.

“For completion, I note that the plaintiff had disclosed that he had applied and obtained citizenship in New Zealand. A copy of his Tongan passport with an expiry date in 2026 was produced. His registration was not challenged and was not subject to argument.”

The judge then ordered that Minister of Lands must give effect to the court’s findings and cancel the Deed of Grant registered in the plaintiff's name, cancel Lease No. 8831 registered in the name of Andrew Clarke, issue the plaintiff a fresh Deed of Grant for his town allotment to include the disputed 2p increasing the total area of his town allotment to 1r 20.2p.

In addition, the Minister shall also re-issue Clarke’s Deed of Lease with the previous total area of 22.47p reduced by 2p.

“The mistake giving rise to this proceeding was the Minister’s alone. Accordingly, costs are awarded to the plaintiff to be paid by the second defendant.”

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