The Land Court of Tonga has ruled that the Minister for Lands was incorrect in refusing to rectify a mistake made by his office on a land deed.
Justice Petunia Tupou KC and Land Assessor Faiva Tu’ifua ordered that the Minister cancel the deed of grant registered under the name of the plaintiff, Kiva Kaufusi.
He also ordered the Minister to cancel the land lease registered in the name of the first defendant, Andrew Clarke.
The Judges then ordered the Ministry to issue Kaufusi with a fresh deed of grant for his town allotment, including the disputed 2p, increasing the total area of his town allotment to 1r 20.2p.
He also ordered that the Ministry re-issue Clarke’s lease deed with the previous total area of 22.47p reduced by 2p.
The court was told that Kaufusi is the registered holder of a town allotment at ‘Utungake, Vava’u, best described under a 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 Lord Tuita’s estate. Lot 87 consisted of a total area of 1R 0.47p1
Clarke is the holder of Lease No.8331 of the neighbouring land lot 87A on survey office Plan 4747B2.
Kaufusi applied to have his town allotment extended from part of lot 87. The estate holder agreed, and Kaufusi lodged his application for the extension with the Ministry.
The complaint concerns the area of 2p claimed to have been deducted by the Ministry from the area intended for Kaufusi’s extension and added onto Clarke’s lease by mistake.
Kaufusi then sought orders that the Ministry correct the area on his deed of grant to include the 2p, which was erroneously included in the Clarke‟s lease.
Unlike the Ministry, the Clarke has taken no steps to defend Kaufusi’s claim.
The Ministry denied it ever received an application from Kaufusi for an extension of 20.2p and, therefore, was not under any duty to hear from him when it granted the material 2p to Clarke.
It was maintained that the areas for Kaufusi’s town allotment, as well as Clarke’s lease, were correct, the court document said.
The Judges said that this case, amongst others, unfortunately, reveals how a simple application can create extreme consequences for all involved.
Appearance for the Ministry
Ms Haitelenisia Mankofua Penitoni and Mr Warrick Vea were in court as witnesses on behalf of the Ministry.
No other evidence of Kaufusi returning the deed was before the court. It is more likely than not that Kaufusi’s recollection of his meeting with Penitoni to return it for the correction is more accurate, the court document shows.
When Penitoni was shown the deed, she claimed to have issued it and asked if she had noticed that the area granted was 18.2p and not 18p. Penitoni said she had just noticed that for the first time.
Clearly, had she looked at the deed together with Kaufusi (as she alleged), who noticed the error when he received the deed, her attention would have been drawn to it there and then, the court was told.
During her evidence, Penitoni attempted to present a purely professional attitude in her dealings with Kaufusi. But her evidence confirms otherwise, the court document shows.
“She gave him her Facebook username, asked him for a card to call him, received lunch money and asked him for cigarettes”, it said.
The Judges said Kaufusi 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 Moa and Penitoni at the time”, Mrs Tupou said.
“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”.
