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Langa Fonua 'A Fefine Tonga v Manuafetoa [2008] TOLawRp 43; [2008] Tonga LR 215 (15 August 2008)

IN THE LAND COURT OF TONGA
Land Court, Nuku'alofa

L 5/2006

Langa Fonua 'A Fefine Tonga anors

v

Manuofetoa anor

Andrew J
21 April 2008; 15 August 2008

Land law – Royal grant of occupation of land to charity – valid grant – plaintiffs were granted injunction

The plaintiff was established by the late Queen Salote as an unincorporated charitable organisation for the purpose of assisting Tongan women throughout the Kingdom in developing living standards. In the 1950s Queen Salote made a grant of Royal Estate land in the village of Pangaimotu, Vava'u to the plaintiff. The plaintiff sought an injunction against the defendants prohibiting and restraining them from constructing a village hall on the said land. The defendants by way of counterclaim alleged that they were entitled to build a village hall on the land in question based upon advice they had received from King Taufa'ahau Tupou IV in a letter dated 21 May 2003. The defendants also claimed to have the right to extend their village hall over two adjoining pieces of land which were known as the Wolfgramm lease and the 'Isaia Fatai land. The Langafonua at Pangaimotu was in the process of gathering funds for rebuilding its own hall on the land in question after their halls had twice in the past been destroyed by cyclones.

Held:

1. Clause 48 of the Constitution provided that the lands of the King and the property of the King were his to dispose of as he pleased. The Sovereign could consent to the occupation of any part of his Royal Estate by any person without that person having been granted an allotment, lease, sublease or permit to reside thereon by the Minister of Lands. Such occupation by that person was lawful although he had no registered title to it, because it rendered the land "unavailable" for grant to anyone else - see Tafa v Viau and Minister of Lands [2006] Tonga LR 232 (CA).

2. The land in question was lawfully occupied by the Langafonua. The purported grant of the land by King Taufa'ahau Tupou IV was only an advice that the Village Committee could build a hall thereon and, more importantly, that advice was countermanded by a subsequent letter under the hand of His Majesty advising that Queen Halaevalu Mata'aho wished the land to remain with the Langafonua.

3. The two adjoining pieces of land had also been granted by Queen Salote to the plaintiffs in 1957 and the plaintiffs had occupied and used them as their land since then. The Sovereign could, as an estate holder, consent to the grant of town and tax allotments out of Royal Estates -- see Tukuafu v Latu anor [2005] Tonga LR 346.

4. Judgment was given in favour of the plaintiffs against the defendants and the defendants failed in their counterclaim. The plaintiffs were also granted an injunction in the terms sought along with costs.

Cases considered:

Tafa v Viau anors [2006] Tonga LR 114 (LC)

Tafa v Viau anors [2006] Tonga LR 232 (CA)

Tukuafu v Latu & Minister of Lands [2005] Tonga LR 346 (CA)

Counsel for the plaintiffs : Mr Fakahua
Counsel for the defendants : Mr Tu'utafaiva

Judgment

[1] In the 1950s, Her Majesty, Queen Salote Tupou III made a grant of land to the Langafonua 'A Fafine Tonga in the village of Pangaimotu, Vava'u. This land is part of the Royal Estate at Pangaimotu (Schedule 11 of the Land Act). The defendants claim that they are now entitled to build a hall on the land based upon an advice from King "Taufa'ahau Tupou IV" dated the 21st of May 2003. The plaintiffs seek injunctive relief to so restrain the defendants.

[2] The Langa Fonua 'A Fafine Tonga (hereinafter referred to for convenience as the Langafonua) was established by Queen Salote as a charitable organisation comprising all Tongan women throughout the Kingdom for the purpose of assisting women and developing living standards etc. Each village set up its own group, with its own committee headed by a chairwoman which would send a representative to the national committee which was chaired by the Queen herself (who was also the patron of the organisation) for the annual general meeting. The second Plaintiff, Siniva 'Aloua was and is chairwoman of the Langafonua at Pangaimotu.

[3] Each village group built its own hall in which the women in that village gathered to make their individual tapa cloths, mats, ta'ovala etc. for their own use or to supplement the family income.

[4] The land granted at Pangaimotu is situated at the north western corner of the crossroads at the centre of the village. I am satisfied that this is the land upon which the Langafonua built its hall and that it was granted by Queen Salote from land described as Mala'e Pule'anga (which in the context here means generally, vacant village land or government common ground). That is distinct from the two adjoining pieces of land which were known as the Wolfgram lease and the Isaia Fatai land and which are also in dispute and shall shortly be discussed in relation to a second claim by the Plaintiff's. On the plan of Pangaimotu township the Langafonua Land is described as being 309.36 square meters.

[5] I am satisfied in all of the evidence that this was the land which Queen Salote granted to the Langafonua. As stated Pangaimotu is a Royal Estate. The Plaintiffs built a hall on the land in 1964 after raising funds to do so. This was largely destroyed in Cyclone Waka in 2001. I accept the evidence that further funds have been collected with the intention of re-building the hall.

[6] Before the Langafonua could commence the Re-building of the hall, the first and second defendants, that is principally the Village Committee of Pangaimotu, requested that the land be granted to them for the purpose of building their village hall upon it. That request was made to His Majesty King Taufa'ahau Tupou IVth and resulted in the following letter dated the 21st May 2003. I should add at this point that Queen Salote had died in 1965.

"Palace Office

Nuku'alofa, Tonga.

21st of May, 2003.

Hon. Governor

Governor Office

Neiafu

VAVA'U

Dear Sir,

I forward this letter with respectful heart because, I have received your letter of 22nd April to the Secretary to His Majesty, and I wish to convey to you in this letter that His Majesty gladly consented that the Hall of Pangaimotu be build on this allotment.

Accordingly, please resolve with and help that woman to understand and also that I have informed the Town Officer that if there had been previous arrangements they are all to be cancelled, we are not going to change any thing but to allow the work of the village to proceed because that is the wish to His Majesty.

I hope that you will assist me in resolving this matter so that there is no problem with this village development, and which will help beautify this village.

Respectfully yours

(signed)

(Estate Representative of His Majesty)"

Copy : TOWN OFFICER - PANGAIMOTU

[7] However, within 3 months of that advice a further advice from or under the hand of the Secretary to His Majesty advised that Queen Halaevalu Mata'aho had directed that the Langafonua should continue to carry out its work on the land and that the Village Committee were to come to the King and request another allotment from His estate. Queen Halaevalu Mata'aho had become patron of the Langafonua since the death of Queen Salote in 1965. That letter was in the following terms:

"Palace Office

NUKU'ALOFA, TONGA

18th August, 2003.

'Akau'ola

Hon. Governor

VAVA'U DISTRICT

Hon. Governor,

TOPIC: WISH OF THE GIRL, QUEEN HALAEVALU MATA'AHO RELATING TO THE ALLOTMENT AT PANGAIMOTU PRESENTLY DISPUTED BETWEEN SINIVA 'ALOUA AND THE VILLAGE COMMITTEE OF PANGAIMOTU

I convey my respects and disturb you in connection with the above topic. And I believe that you are already aware of the background and every thing that has happened relating to the people of Pangaimotu.

But because another plea has been brought by SINIVA 'ALOUA to the Queen Girl it has caused Her Majesty to direct me to convey the following to you:-

She said: "Please allow Siniva 'Aloua and the Little angafonua Group to carry out their work on the allotment which they presently occupy, because that was a grant from the Sun which has Set. And order the Town Officer and the Village Committee to come to the King and request another allotment from His estate at Pangaimotu to build the village hall and the works of the Village Committee on it. The Queen Girl emphasised the importance of the peaceful co-existance of these people and for them to refrain from malevolence, because they are all related.

Hope that the command that I am instructed to convey is clear 150 (understood).

Respectfully yours,

...............................

Signed

SATEKI H. 'AHIO

for Acting Secretary to His Majesty

copy: Hon. Minister of Lands

Town Officer – Pangaimotu

Siniva 'Aloua – Pangaimotu"

I make the following findings

[8] I am satisfied that the Langafonua at Pangaimotu is still in existence. It is in the process of gathering funds for the Re-building of the hall. Twice in the past when its building had been destroyed by cyclone it had re-built and continued to operate. True it is that some members have died including some of the 45 named Plaintiffs. It is an unincorporated social organisation and its activities seem to have been curtailed by the claims of the defendants for their use of this land.

[9] Clause 48 of the Constitution provides that the lands of the King and the property of the King are his to dispose of as he pleases. The Sovereign can consent to the occupation of any part of his royal estate by any person without that person having been granted an allotment, a lease, sub-lease or permit to reside thereon by the Minister of Lands. Such occupation (as submitted) by that person is lawful although he has no registered title to it, because such occupation renders the land "unavailable" for grant to anyone else as allotment or lease : see Tafa v Viau anors [2006] Tonga LR 114 (LC) which was upheld on this point by the Court of Appeal on the 15th August 2006 in Tafa v Viau anors [2006] Tonga LR 232 (CA). This land was lawfully occupied by the Langafonua.

[10] The purported grant of the land by King Taufa'ahau Tupou IV dated 21st of May 2004 was, firstly only an advice that the Village Committee could build a hall there. But secondly and more importantly this was countermanded by the letter of the 18th August under the hand of His Majesty advising that Queen Halaevalu Mata'aho's wish was that the land was to remain with the Langafonua and that the Village Committee and Town Officer were to come to the King and request another allotment upon which to build the village hall. There is no evidence that they ever did this. In my view that was effectively the advice of the Sovereign and therefore the advice of the 21st May 2003 allowing the Village Committee to build its hall on the land was superseded. The grant of land remained with the Langafonua.

[11] The Defendants have counter-claimed for an order that the 1st and 2nd Plaintiffs are to remove all the properties that they may have on this land. It follows from my findings above that this land is lawfully occupied by the Langafonua and that therefore the counterclaim must fail.

[12] The Plaintiffs have also claimed damages in the sum of $10,000 which they say is the value of the concrete foundation, concrete floor and brick walls which were demolished by the defendants. I think that there is no evidence of the value of the wall that was destroyed nor is there any evidence of a plan for the proposed hall as approved by Ministry of Works which would incorporate any of the structures which have been removed. I think also that the removal may have been done in good faith in that the defendants believed they had been given permission to build their hall. I would not wish to inflame feelings any further within the village. It seems a pity that the matter could not have been settled as both parties desire the same thing, that is the erection of a village hall for the use of the village. In all the circumstances I do not make any award for damages to property.

[13] The Plaintiffs seek judgment against the defendant and an order in terms of a prohibition and injunction restraining the Defendants and their officers, servants, agents and contractors from entering upon, carrying out any work upon or removing anything from the land which was and is occupied by the Langafonua.

[14] I make that order as follows:

ORDER

(1) I give judgment to the Plaintiffs.

(2) The Defendants, their officers, servants agents and contractors are prohibited and restrained from entering upon, carrying out any work upon or removing anything from the land being an area of 309.36 square meters situated at the north western corner of the cross roads at the centre of the village of Pangimotu, Vava'u which was granted to the Langafonua 'A Fefine Tonga by Her Majesty Queen Salote Tupou III.

(3) Costs are awarded to the Plaintiffs as agreed or taxed.

2nd CLAIM

[1] There is also in dispute a town allotment and a tax allotment which adjourn the Langafonua land and which the defendants sought to have included with the Langafonua ground so that their village hall might be built upon the entirety of all of that land.

The claim of the Plaintiff's Siniva and Mo'ale 'Aloua is in respect of that piece of land which is adjacent to the Langafonua land. It has a total area of 508.6 square meters. The Town Officer of Pangaimotu advised the Plaintiffs that they were to remove their property from the land as 'the village has lawfully acquired this town allotment because that is the wish of His Majesty". The Defendants had the Government surveyors survey the land for the purpose of the village hall being built on this land and the land granted by Queen Salote to the Langafonua. The Plaintiffs have a fence, shop and water tank on the property.

I have already ruled that the advice of His Majesty was superseded by his advice of the 18th August 2003.

[2] The survey shows that these two pieces of land were historically known as the O.E. Wolfgram lease and the Isaia Fatai land. Those persons were relatives of the Plaintiffs.

[3] This land was granted by Queen Salote to the Plaintiffs in 1957 and that was confirmed, by King Taufa'ahau Tupou IV" as evidenced in the letter of the 24th November 1977 to the Vava'u Governor and Estate Representative at Neiafu, in the following terms:

"OFFICE OF THE PLACE

Nuku'alofa

Tongatapu.

24th November, 1977.

HON. MA'AFU TUPOU

HON. VAVA'U GOVERNOR

ESTATE REPRESENTATIVE

NEIAFU

VAVA'U

Dear Sir,

I convey my respects and hereby inform you that I have been informed by the Hon. Ha'apai Governor, (Hon. Ve'ehala) who is the Estate Representative to His Majesty in the past up to 1968, in connection with a town allotment and a tax allotment called "MOHOKOI" at Pangaimotu/Vava'u. Those two allotments were granted by the Sun which has Set, the Girl, Queen Salote and himself the Estate Representative (Noble Ve'ehala) to Mo'ale 'Aloua and his wife Siniva 'Aloua in 1957.

So I have further been informed by the Queen Girl, HALAEVALU MATA'AHO, that Ve'ehala and I are to finalise this matter and that the grant which had been made in the past be not changed but to continue. So it is clear that the grant which was made is true and you please proceed with the legal formalities in respect of these two allotments to give them to MO'ALE 'ALOUA and also for the rest of the people of Pangaimotu to understand that these two allotments have been granted lawfully to MO'ALE and that they are not to interfere with them.

I trust that I have sufficiently conveyed to you the wish of Her Majesty which I have stated in connection with these two allotments at PANGAIMOTU, and also for the Town Officer of Pangaimotu to inform the people of the order which has been made in connection with these two allotments to which I have referred above.

Respectfully yours.

(Signed)

(F.M. TONGILAVA)

SECRETARY TO HIS MAJESTY"

[4] From 1957 up to the present time the Plaintiffs have occupied the land and used it as theirs. They have permanently fenced it and built and operated a shop there and built a concrete water tank on it.

[5] The Sovereign can, as an estate holder, consent to the grant of town and tax allotments out of royal estates: See Tukuafu v Latu & Minister of Lands [2005] Tonga LR 341 (CA) and by Clause 48 of the Constitution the lands of the King and the property of the King are his to dispose of as he pleases.

[6] The Plaintiffs have been in lawful occupation of the land for over 50 years even if there is no registered title to it. Such occupation renders the land "unavailable" for grant to anyone else as allotment or lease: See Tafa v Viau and Minister of Lands [2006] Tonga LR 114 (LC).

[7] There was no basis upon which the Town Officer of Pangaimotu could say that this land, described as a town allotment and tax allotment, was lawfully acquired by the village committee. No lease or permit or allotment or any interest in this land has been granted to the defendants and they have not been in lawful occupation of either piece of land.

[8] For all of these reasons I give judgment to the Plaintiffs against the Defendants.

I grant an injunction against the defendants and their officers, servants, agents and contractors prohibiting and restraining them forthwith from entering upon, carrying out any work or removing anything from the area of 728.8 square meters which is bounded by survey pegs numbered 12204, 12205, 12206, 12207 and 12208, situated at the north-western corner of the cross-roads at the village of Pangaimotu, Vava'u.

Costs are awarded to the Plaintiffs as agreed or taxed.