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Maamakalafi v Finau [2004] TOCA 9; CA 16 2003 (30 July 2004)

IN THE COURT OF APPEAL OF TONGA
NUKU’ALOFA REGISTRY

NO. AC. 16/2003

BETWEEN:

SAMIU MAAMAKALAFI and
TANGIMAUSIA MAAMAKALAFI
Appellants

AND

KAITU’U-‘I-PANGAI FINAU
Respondent

Coram: Burchett J
Tompkins J
Salmon J

Counsel: Ms Tonga for the Appellants
Mr. Fakahua for the Respondent

Date of Hearing: 27 July 2004
Date of Judgment: 30 July 2004

JUDGMENT OF THE COURT

[1] This is an appeal from a decision of the Land Court as to who is entitled to a particular town allotment disputed between the First Appellant and the Respondent. The town allotment is one of two in the village of Fotua on the island of Foa in Ha’apai. Many years ago, each of these two allotments had a name bestowed on it, by which it was identified, and those names found their way into official land registrations that did not otherwise describe the allotments registered. That required the Land Court to decide which of the two allotments had borne the name “Lolopua” and which the name “Heilala”. The same question has now been taken to this Court on appeal.

[2] The Respondent and the First Appellant (whose wife is the Second Appellant) claimed respectively through the Respondent’s mother, Ma’ata Latu (a former schoolteacher, now aged about 73) and a half-brother of Ma’ata Latu’s mother, Vaima’ali Mo’unga, who is the First Appellant’s father. By reason of the family relationship involved, there was a connection, over the years, between “Heilala” and “Lolopua”, although one was at the edge of the village and the other near its centre, which may have contributed to some confusion arising between them, at least so far as outsiders were concerned, in recent times when the origins of their names may have come to seem obscure. Those origins must have had roots a long time in the past, for the Lands Office records, as far back as 23 February 1928, show the first registered holder of the land then called “Heilala” as Sione Latu, the grandfather of Ma’ata Latu, and the first registered holder of “Lolopua” as Fehoko Sete, her great-grandfather. She was born on 6 February 1931 on the allotment she said she knew as “Heilala” on the edge of the village, which in her childhood had three large Heilala trees growing on it. At the same period, the allotment near the centre of the village had Tongan Pua trees on it, with which the young Ma’ata was familiar because, after her great-grandfather died, her mother took care of his widow and Ma’ata as a child went frequently between the two allotments. Her evidence was that, in those days, her elders often referred to the allotments by name; and she understood the names, “Heilala” and “Lolopua”, had reference to the trees that have been mentioned. “Lolopua” connotes, in Tongan, the meaning “under the Pua tree”.

[3] Ma’ata Latu went to school in Tongatapu at the age of twelve, returning home for school holidays; on leaving school at seventeen, she lived at home for about a year on the allotment she called “Heilala”; and then in 1949 she began working as a schoolteacher in Tongatapu, marrying Laulotu Finau in 1951, of her union with whom the Respondent is the fourth child. After a separation from her husband, she returned early in 1970 to live in Fotua. Her uncle, Sione Fangatua, who had been registered since 20 June 1938 as the holder of “Lolopua” (he was living in 1970 in Tongatapu where he died in December 1973), invited her and her parents to live on the allotment she knew by that name. When they went there, it had the appearance of having been abandoned for some ten years.

[4] According to her account, Ma’ata Latu obtained her uncle’s permission to clear “his land”, referring to the allotment near the centre of the village, and she arranged for that to be done by bulldozer shortly prior to his death. As he was the registered holder of “Lolopua”, this evidence, if accepted, supports the view that “Lolopua” was the allotment near the centre of the village.

[5] After the death of Sione Fangatua, his younger brother Tapua Latu also known as Poutapua Kamelieli, told Ma’ata Latu and her half brother Sione Kulikefu to build Tongan fales on the land, as they did. In December 1975, Ma’ata Latu and Sione Kulikefu had a meeting with the estate holder, the Honourable Tu’ipelehake, at which it was verbally confirmed to them, according to her evidence, that they could continue to live on the land, looking after it, until its eventual survey and subdivision, when they would receive it. Following an exchange of fales between them, at the behest of Tapua Latu, Ma’ata Latu completed in early 1982 the construction of a more substantial timber and iron house, about which she erected a fence and planted trees.

[6] It was towards the end of 1993 that the First Appellant and his father, Vaima’ali Mo’unga, arrived back in Fotua from the United States where they had been living for many years and to where Vaima’ali Mo’unga returned after a couple of years. The First Appellant and later the Second Appellant, as well as Vaima’ali Mo’unga while he was in Fotua, stayed at the allotment, either in Ma’ata Latu’s house or her brother’s fale, he having left for Australia. Without any attempt at an exhaustive recital of the events, it can be said that the sharing of the allotment was far from successful. Ultimately, in 1999, Ma’ata Latu’s house was demolished by the Appellants, her objection being futile to prevent them doing so. There was considerable dispute between the parties about the circumstances under which Ma’ata Latu was effectively evicted and the house was demolished, but no dispute that she was required to vacate and the demolition was carried out.

[7] Notwithstanding what had occurred, Ma’ata Latu’s son, the Respondent, was able on 16 October 2000 to obtain registration as the holder of the subject land, being the part of the allotment near the centre of the village formerly occupied by his mother.

[8] That Ma’ata Latu “had been chased out of her home by the [Appellants]” was denied by the First Appellant in evidence, and her account of events was disputed. But the trial judge, having listened to the evidence and cross-examination, firmly held: “I accept Ma’ata’s version of events.” His Honour also said: “I found her to be a reliable and credible witness and I preferred her evidence whenever it conflicted with evidence given on behalf of the [Appellants].” His Honour expressly accepted Ma’ata Latu’s evidence concerning the genesis of the names “Heilala” and “Lolopua” and the identification of the allotments referred to by those names.

[9] Following her eviction, Ma’ata Latu went to see the estate holder, the Honourable Tu’ipelehake, and arranged for applications to be made by her son, the Respondent, and her brother in respect of different parts of the allotment she called “Lolopua”. The Honourable Tu’ipelehake signed both applications, which were then lodged in the Ministry of Lands. The Honourable Fielakepa, as Minister of Lands, approved the Respondent’s application on 16 October 2000 and registration was effected on that date, as has already been noted. After a survey had been completed, a Deed of Grant was issued to the Respondent on 5 November 2001 in respect of the land the possession of which is disputed in this appeal. The Deed of Grant referred to that land as “Lolopua”.

[10] On the face of it, the registration in the name of the Respondent would seem to have determined the matter. But the Appellants relied on an earlier Certificate of Land Apportionment issued upon an application made by Vaima’ali Mo’unga in 1992 in respect of the land described in the official Register as “Heilala”. This certificate would only be relevant to the present dispute if “Heilala” were the land near the centre of the village. But in any case, it is worded as certifying that Vaima’ali Mo’unga “has been conditionally registered” (emphasis added), and the form employed is not one authorized by the Lands Act. The Minister gave evidence to the effect the issue of such certificates had since come under review.

[11] If the so-called Certificate of Land Apportionment be put to one side, the Appellants rely on the registration of Vaima’ali Mo’unga on 19 May 1993 in the Register of the Ministry of Lands as a holder of the allotment known as “Heilala”, which they claim is actually the allotment described by Ma’ata Latu as “Lolopua”. But the Registrar of Lands, who gave evidence, disputed that this was the same land as is described in the Respondent’s Deed of Grant. Of course, if the trial judge was right in accepting Ma’ata Latu’s evidence, it could not be.

[12] A matter of the first importance, in this case, is the opportunity that the Judge had to observe a number of witnesses including Ma’ata Latu in the witness box. His assessment of their credibility cannot be set aside on appeal, except in the limited circumstances allowed by the authorities. The Court of Appeal must acknowledge its own inability to assess the evidence against the background of the trial itself of which a transcript – especially an incomplete one – is at best a partial and flickering reflection. Some of the authorities were collected in a passage in the judgment of this Court in Jin-Chuan v Li [1999] Tonga LR 140 at 143:

“It is, of course, well established that a trial judge’s findings of fact based on the credibility of witnesses, where their demeanour may have influenced the decision, will only be set aside in quite rare circumstances: SS Hontestroom v SS Sagaporack [1927] AC 37 at 47, Watt v Thomas [1947] AC 484 at 487 and 488; [1947] 1 All ER 582, Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167 at 178 and 179; [1990] HCA 47; 96 ALR 354, Rennie v Commonwealth (1995) 61 FCR 351. In Powell v Streatham Manor Nursing Home [1935] AC 243 at 255; [1935] All ER Rep 58, Lord Atkin stated the reason for this rule in vivid words, when he said that the appellate court ‘can never recapture the initial advantage of the judge who saw and believed’.”

[13] One significant witness’s demeanour in the witness box the trial judge could not assess; that was Vaima’ali Mo’unga, who did not give evidence. A medical certificate in vague terms was produced to account for his absence, but no application was made to call him on another occasion.

[14] The starting point in the consideration of the appeal must be to determine whether, in the circumstances, it is appropriate for this Court to overturn the trial judge’s conclusion accepting Ma’ata Latu’s evidence concerning the identity of each of the areas of land described as “Heilala” and “Lolopua”. In our opinion, that conclusion should stand. The result is that the registration of Vaima’ali Mo’unga of 19 May 1993 on which the Appellants rely related to the land on the outskirts of the village (“Heilala”) and could not have prevented the grant that was made to the Respondent of land near the centre of the village (“Lolopua”).

[15] But the Appellants made a further attack on the Respondent’s registration and grant which, though not pleaded as a ground of invalidity, was dealt with and rejected by the trial judge. They urged that the Minister of Lands, in registering the grant of a town allotment to the Respondent, had acted contrary to s.50 of the Land Act. The contention was that the Respondent did not come within para. (a) or (b) of that section and that, as to para. (c), on which the trial judge relied, he made no application to test the availability of land falling within that paragraph. To assist understanding of the argument, we set out s.50, as follows:

“50. Land for allotments shall be taken from the hereditary estates in accordance with the following rules –

(a) an applicant for an allotment lawfully resident in an hereditary estate shall have his allotments out of land available for allotments in that estate;

(b) where there is no land available in the estate in which the applicant is resident, then the allotment shall be taken out of some other estate held by the noble or matapule in one of whose estates the applicant is resident;

(c) if no land is available in any hereditary estate held by the noble or matapule in one of whose estates the applicant is resident then the allotment shall be taken out of the hereditary estate of any other noble who is willing to provide such allotment;

(d) if no land is available under rule (c) then the applicant may have his allotment from Crown Land;

(e) an applicant for an allotment to be granted out of Crown Land shall have his tax and town allotments from such particular portion of Crown Land as the Minister may decide:

Provided that an applicant already resident on Crown Land shall where possible be granted the allotments from the particular area of Crown Land in which the applicant is resident.”

[16] But there is a number of answers to the Appellants’ contention.

[17] In the first place, the Minister of Lands was not joined as a party to the proceeding. If the registration and deed of grant were to be set aside on the ground that he acted unlawfully, that would require him to be joined and heard.

[18] Secondly, we agree with the learned Judge that an infringement of s.50 was not shown. In para. (c), the question is whether land “is available” in the relevant hereditary estate, not whether an application has been made for it. The Minister may have more than one way open to him to ascertain the answer to that question. In any case, unless there is proof to the contrary, a presumption of regularity would protect the registration effected and the deed of grant issued: Phipson on Evidence, 14 ed. (1990) 5-15; The Queen v Reynolds [1893] UKLawRpKQB 86; [1893] 2 QB 75. It is true the presumption is rebuttable, but it has not been rebutted.

[19] Thirdly, an infringement of a statutory provision regulating the performance of an official act does not necessarily spell invalidity. It depends on the true construction of the Act: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 388-391. In the course of the discussion in their joint majority judgment, McHugh, Gummow, Kirby and Hayne JJ referred to the distinction sometimes made between mandatory and directory provisions, and said (at 390-391):

“A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. ... In determining the question of purpose, regard must be had to ‘the language of the relevant provision and the scope and object of the whole statute’.”

[20] In applying this test to s.50, the Court must take account of two other sections in the immediate context of s.50 which expressly provide that disregard of their requirements has the consequence of nullifying any grant: sections 48 and 49. But s.50 contains no rule laying down any such consequence. In our opinion, s.50 is intended to set out rules to guide the Minister, but not to create a ground upon which a third party can attack the validity of a grant.

[21] It follows that the trial judge was right to reject the Appellants’ defences and to uphold the Respondent’s claim based on the Deed of Grant of that part of “Lolopua” which was described therein, being situated in an area near the centre of the village of Fotua. The appeal must be dismissed with costs.

Burchett J
Tompkins J
Salmon J