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Lelea v Lelea [2024] TOCA 17; AC 5 of 2024 (20 November 2024)

IN THE COURT OF APPEAL OF TONGA

LAND JURISDICTION
NUKU’ALOFA REGISTRY

[AC 5 / 2024]
[LA 5 / 2023]

BETWEEN

LUTOVIKO PASIAKA LELEA
Appellant

AND
SOLOMONE TUPANIKOLO LELEA
Respondent

Hearing: 13 November 2024
Court: Randerson J, Harrison J and Heath J
Counsel: Sunia Fili for the Appellant
: Fata Vaihu for the Respondent
Judgment: 20 November 2024

Introduction

[1]This appeal against a series of judgments delivered by Cooper J in the Land Court arises from a dispute between two family members about their competing rights to two allotments on Tongatapu, resulting in an order directing one party to vacate possession of the lands in favour of the other.

[2] As will become apparent, the appeal grounds do not require us to consider the factual merits of the order to vacate. Instead, our focus is on a series of alleged procedural errors, and one of law, which are said to vitiate the judgments.

Background

[3] Solomone and Pasiaka Lelea share common blood lines. Solomone is Pasiaka’s nephew. Solomone’s father, Hamaloto, was the eldest son in a family of 11children, and Pasiaki is Hamaloto’s youngest brother. Solomone is the eldest son in his family.

[4]Viliami Lelea was Solomone’s great grandfather and Pasiaka’s grandfather. Viliami was the original holder of a town allotment and a tax allotment at Lapaha on Tongatapu . Registration of the former lapsed in 2002 on the holder’s death. Registration of the latter had passed to Solomone’s grandfather, but it also lapsed on his death in 2023.

[5]It is unnecessary for these purposes to traverse the history of occupation of the allotments following the lapsing of registration except to record that in recent years Pasiaka and his family had taken physical possession of the town allotment, where they had erected structures, and were allegedly interfering in the management of the tax allotment. These events apparently brought to a head a long-standing feud between Solomone and Pasiaka and involved members of the wider family. In early 2023 Pasiaka lodged an application with the estate holder’s agent for approval and, shortly afterwards, Solomone lodged an application with the Minister of Lands to register the two allotments in his name.

[6] In May 2023 Solomone issued proceedings in the Land Court. He sought an order directing Pasiaka to vacate the allotments. He also applied for but later withdrew an interim injunction to enforce Pasiaka’s removal. On 9 August 2023 Cooper J fixed 15 November 2023 as the date for trial of Solomone’s claim and made timetabling orders including a direction that Pasiaka file a statement of defence by 30 August 2023.

[7] Pasiaka did not file a statement of defence as directed. However, on 30 August 2023 he filed an application to strike out Solomone’s proceeding, on the ground that Solomone did not have standing to apply for any relief against him because he was not the registered holder or owner of the allotments. That ground also identified a substantive ground for Pasiaka’s defence to Solomone’s claim.

[8] The original trial date was adjourned, apparently to determine Pasiaka’s strike out application. A good deal of interlocutory activity followed in late 2023 and early 2024. Some of it is confusing.

Strike Out

[9] These two directions are relevant:

(1) On 16 November 2023 Cooper J directed that Pasiaka’s strike out application be listed for hearing on 7 December. 2024. On that date he made an order dismissing the application. No reasons were given.

(2) On 19 January 2024 Cooper J listed Pasiaka’s strike out application for hearing on 1 February. This was the same application which he had dismissed on 7 December. The purpose may have been to give reasons for his order made on 7 December.

.

[10] On 31 January 2024 Cooper J delivered a reasoned judgment dismissing Pasiaka’s strike out application which had been listed for call in Court the next day. The ground for his decision was that Solomone was the great grandson and rightful heir of Viliami, the original holder, and the claim was pursued on that basis and “... there is nothing about that relationship or his claim that is unreasonable or frivolous or falls under a head that would require strike out”.

[11] Although the Judge did not articulate his brief reasoning in these terms, it was arguable that Solomone’s status fell within the extended statutory definition of a “holder” ^[1]of an allotment and in that capacity he had standing to issue proceedings. The phrase “holder” includes “... any person who claims he is entitled to any land or interest in land, whether in actual possession or occupation or otherwise”. Solomone’s affidavit sworn on 21 September 2023 recites that he is a Tongan subject and the eldest son and heir of Hemaloto. He was born in American Samoa in 1988 and has lived most of his life in the United States of Ameica. He appears to reside permanently there in the state of Utah.

[12] Solomone has visited the land twice, in 1991 and 2017. His father died in 2023. He says that his father, who had intended but failed to apply for registration before his death, promised that the legal interest in the allotments would pass to him as heir. Solomone also says that the estate holder, Lord Kaleniuvalu, has endorsed his application for registration. He claims to be entitled to the allotments for those reasons even though he does not have physical occupation.

[13] The Judge did not explicitly address Mr Fili’s argument that a party who was not himself the legal holder of an allotment had no enforceable right to obtain eviction orders against a third party. Mr Fili’s argument was also highlighted in Pasiaka’s notice of reply to Solomone’s earlier application for interim injunctive relief. He pointed out that the Crown is the owner of the land^[2]. The interest of the holder of any tax or town allotment is a life interest^[3]. The Minister of Lands is the Crown’s representative in all matters concerning land in Tonga and grants the allotments^[4]. The holder registers his holding once the boundaries are determined, and the Minster of Lands grants a deed of grant^[5].

[14] In this case both original grants to Viliami had lapsed and the land had reverted to the estate holder. However, it appears that Lord Kalaniuvalu allowed family members to remain in physical occupation. The boundaries of the original allotments would have retained their physical characteristics, and all family members apparently treated them as though they still existed and ordered their lives accordingly. It is correct that the allotments had no legal designation unless and until the Minister determined the competing applications filed in 2023 and decided to issue a deed of grant. The land had remained in Crown ownership throughout.

[15] We are satisfied that the Judge was correct to refuse to strike out Solomone’s claim at an interlocutory stage. He arguably fell within the extended definition of a holder of the allotments. The issue was whether his claimed entitlement to the land was sufficient to satisfy the Court that Pasiaka should be ordered to vacate pending registration. That was largely a factual dispute to be determined on evidence at the trial. Pasiaka’s appeal against this judgment must fail.

[16] On 31 January also Cooper J listed the case for mention in seven days. That was to enable Solomone to file an application for a hearing by way of formal proof of his substantive claim in the absence of a statement of defence as earlier ordered. Ms Vaihu advises that the application had been foreshadowed for some months, and we infer that it was not pursued during this time while Pasiaka’s strike out application awaited determination.

Formal Proof

[17] On 2 February Cooper J issued a direction noting that Solomone had now filed an application for a hearing of his substantive claim for eviction on formal proof. The Judge directed that the claim be heard on 16 February on affidavit evidence. Mr Fili justifiably complains that the Judge moved with unnecessary expedition. His direction was given within two days of dismissing Pasiaka’s strike out application and before Mr Fili had an opportunity to consider the Judge’s reasoning.

[18] On 5 February, Pasiaka filed a statement of defence, including his affirmative plea that Solomone had no right to relief against him as he was not the legal holder of the allotments, together with an application for leave to oppose Solomone’s application for a formal proof hearing. He also filed his own substantive affidavit in answer to Solomone’s claim on the merits together with supporting affidavits from other family members.

[19] On 8 February, Cooper J ordered that Pasiaka’s application for leave to oppose Solomone’s application for a formal proof hearing and his statement of defence be struck out. He made the order on the papers without giving counsel a right to be heard. The Judge decided that it was in the interests of justice to determine Pasiaka’s application without a hearing and to proceed expeditiously with the formal proof hearing which he had already scheduled for 16 February, referring to the incorrect procedural provision.^[6] He relied on the grounds that (a) neither party had asked for a hearing of the application; (b) the application did not comply with Order 13, Rule 2 of the Supreme Court Rules or provide a basis for departing from the existing direction to list the hearing for formal proof; (c) Pasiaka had not provided a basis for bringing his application; (d) the matter was already listed for a formal proof hearing; and (e ) Pasiaka had been guilty of significant delays in filing his statement of defence.

[20] We are satisfied that Cooper J erred in making this order. He wrongly exercised his discretion to deal with Pasiaka’s application without a hearing. Order 13, Rules 3 and 4 of the Supreme Court Rules are prescriptive. In summary, R3 requires the Court to hear all applications except in the circumstances provided by R4. They are where the parties agree on the orders sought or that the Court should dispense with a hearing, the application only affects the party applying, a relevant statute permits determination without a hearing or “...the Court considers it appropriate in the interests of justice to dispense with a hearing”.

[21] The thrust of these rules is the parties are entitled to be heard unless the application is of a routine or non-contentious nature. They reflect the fundamental precept of natural justice that parties should be heard on all disputed applications affecting their rights and interests. The interests of justice allow the only exception, and in our judgment the circumstances must be exceptional to deprive a party of this fundamental right. Examples are where a party will be irreparably prejudiced by the delay involved in a hearing or the unique exigencies of the case require a determination without a hearing.

[22] The Judge identified various factors relevant to his decision to dispense with a hearing which on analysis came down to two. One was that Solomone’s substantive application for a formal proof hearing was listed to be heard in just over a week’s time. That was a procedural issue, and any delay caused by affording the parties a right to be heard on Pasiaka’s opposition to a formal proof hearing could have been incorporated within an order for costs. There was no evidence of any prejudice to Solomone if the trial was delayed. As noted, he lives in the United States and was to give his evidence by AVL. His supporting witnesses live in Tonga.

[23] The other factor, Pasiaka’s unexplained delay in filing a defence, was also procedural. The Judge was right to take account of it. It had caused inconvenience and unjustified cost. However, we are satisfied that this non-compliance was due to Mr Fili’s misunderstanding. He believed that no substantive steps would be taken towards trial until Pasiaka’s application to strike out was resolved. While it was technically wrong, all parties appear to have operated on that premise after 30 August 2023, and it was for all practical purposes correct; the proceedings would be at an end if the strike out application succeeded, as Mr Fili rather optimistically anticipated would transpire.

[24] The Judge could have addressed this non-compliance by an adverse costs order subject to strict payment conditions. Pasiaka’s delays, attributable to his counsel’s error, were not of such a nature or magnitude to have disqualified him from the right to be heard on his application, with the inevitable consequence of disbarment from presenting his substantive defence at trial.

[25] Mrs Vaihu relied on English ^[7]and Australian^[8] authorities which underscore the importance of adhering to procedural rules and timetables to prevent undue delays and ensure the efficient administration of justice. Those principles are well established and uncontroversial. But each case must depend on its own circumstances. Here Pasiaka’s delays were not extreme. Both parties and the Court were well aware throughout that his threshold legal challenge to Solomone’s standing required determination before the case could be set down for a hearing. Pasiaka’s non-compliance did not materially compromise the efficient administration of justice.

[26] Cooper J also erred in law. The Land Court only has power to hear formal proof of a claim “...where the defendant has failed to file a defence” ^[9]. In that event Order 14, Rule 1 of the Supreme Court Rules, which allows entry of judgment by default for failure to file a defence within time, is expressly excluded. The Court is directed not to hear from the defendant. It is a peremptory provision, and the Order should be construed liberally to avoid its draconian consequences,

[27] By 8 February Pasiaka had filed a defence, albeit out of time and without leave. Order 6 refers to a defence, not a statement of defence, implying that.Pasiaka’s defence does not necessarily have to comply with the Supreme Court Rules including timing requirements so long as the substance of the defence has been conveyed to the Court and the opposite parties. Pasiaka’s statement of defence was comprehensive and, apart from raising the challenge to Solomone’s standing, it particularized his substantive opposition to eviction on arguable grounds supported by affidavit evidence from his witnesses. He had made clear his intention to oppose Solomone’s claim from the outset of the proceedings. An interlocutory decision to debar Pasiaka from presenting his defence in these circumstances was unjustified and plainly contrary to natural justice.

[28] We are satisfied that the Land Court had no jurisdiction to proceed to trial on formal proof once Pasiaka had filed his defence and, in any event, the Judge was wrong to earlier disbar Pasiaka from opposing Solomone’s application to proceed to trial on formal proof and consequentially from opposing the substantive claim on its merits. Pasiaka’s appeal against this judgment must be allowed.

Substantive Judgment

[29] On 19 February Cooper J delivered his substantive judgment after sitting with an assessor at the formal proof hearing on 16 February. He heard Solomone’s evidence by AVL for the United States of America and reviewed the uncontested affidavit evidence. He was satisfied that Solomone was entitled to the allotments and made orders that Pasiaka vacate in three months’ time. That order has since been stayed pending the determination of this appeal. He also made an order for costs in Solomone’s favour.

[30] It follows from our preceding analysis that this judgment must be set aside also. In brief summary, Cooper J erred, first in directing that Solomone’s case be heard by way of formal proof when Pasiaka had filed a statement of defence and by his conduct of the litigation had manifested his intention to oppose, and second, in upholding Solomone’s claim to possession and ordering Pasiaka’s eviction in circumstances where Pasiaka challenged his legal entitlement to relief.

Result

[31] The appeal is allowed. The judgments of the Supreme Court delivered on 8 February 2024 and 19 February 2024 and all consequential orders made in that Court are set aside.

[32]The proceedings are remitted to the Land Court to rehear Solomone’s claim and to determine all related interlocutory applications.

[33] Solomone is ordered to pay costs to Pasiaka as fixed by the Registrar plus reasonable disbursements.

Randerson J

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Harrison J

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Heath J

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^[1] Section 2 (f) of the Land Act
^[2] Section 3 of the Land Act
^[3] Section 4
^[4] Section 19
^[5] Section 29
^[6] Order 14 (4) of the Supreme Court Rules.
^[7] Mitchell v News Group Newspapers Ltd [2013] EWCA Civ 1537
^[8] Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27
^[9] Order 6, Rule 1 (3) of the Land Court Rules