The Minister of Land was misled into approving a grant of land, the Lands Court has decided.
The case involved a block of land at Pea, part of the Lavaka estate. It was granted to Viliami Fonise Havelu on January 13, 2014.
In his report on the case, Mr Justice Scott said that the agent representing the land’s Estate Holder, Fīnau Hūfanga, had prevented another application for the land reaching the Minister of Land.
He described this as an unacceptable departure from the statutory procedure for applying for an allotment.
The case was held before Mr Justice Scott and Mr Assessor S. Toumo’ ua earlier this month.
The plaintiff in the case, Robert Mervyn George Makaui, claimed the land was unavailable for granting to Havelu because it was already lawfully occupied on his behalf by his mother.
With the consent of the then town officer, his mother and his deceased aunt had fenced off the allotment and built a substantial house upon it.
Makaui claimed that the actions of the Estate Holder’s Land Representative, Finau Hufanga, the Minister approved the grant to Havelu under the impression that this was the only application, when in fact, he, Makaui, was the first person to apply for the land.
Makaui was born in Auckland in 1981. He remembered coming to Tonga when he was about eight years old. He lived on the land in question with his aunt Lupe, his mother’s sister, who had a house there. He attended the local school at Pea and returned to New Zealand when he was about 11. He moved to Australia in 2007 and has lived there ever since. He is a New Zealand citizen, but also has a Tongan passport.
Makaui told the Court that his mother told him that he had some land in Tonga and that his aunt Lupe, who had died in 2011, had left her house in Tonga to him. She also told him that she had applied for the land to be granted to him.
Lipeti Tupou, a long time resident of Pea, told the court that her uncle Fakavale Tapua was the town officer “in the l970’s.’ His daughter ‘Elisi, who was a friend of hers, told her that her father had authorised the Plaintiff’s aunt Lupe to move onto the land, on which she built a house and a fence.
Tupou said it was common knowledge in Pea that the land belonged to Lupe and her sister Alakivailahi.
Makaui’s mother, Alakivailahi Fifita, said Havelu had agreed at a family meeting in 1985 to emigrate to New Zealand where his sisters would help him start a new life. In return, he would relinquish his interest in the land and leave it clear for the sisters to develop.
“Havelu surrendered the land to Lupe so that it could be transferred to my son after the house was built,” Fifita said.
The Estate Holder’s agent, Hufanga, told the court he had received an application for the land presented on behalf of Makaui by his mother and that he had undertaken to process it.
Following the Estate Holder’s instructions to give preference to those born in, brought up in and living in Pea he had consulted the family, in particular Makau’s uncle Sione, who suggested that the land had been allocated to Havelu many years ago. He decided that he could not support the application. He then went to the Ministry of Lands where he found the Havelu’s name written on the plan of the land.
He said this confirmed what he had been told, namely that Havelu was generally considered in Pea to be the holder of the allotment. He said it was his policy not to present competing applications to the Estate Holder but to decide which one merited the Estate Holder’s approval. As a result, Makaui’s application was never submitted to the Estate Holder. Havelu’s application was approved and then forwarded to the Minister for the grant to be made.
The Ministry received Makaui’s application endorsed with the Estate Holder’s certificate of support. No other application was received by the Ministry and the Ministry was unaware that there was another application or that Havelu’s application was contested.
Mr Justice Scott said that while he found it acceptable for the Estate Holder to issue his agent with guidelines, it was not acceptable for an agent to intervene in the procedure by preventing an application from reaching the Minister.
The judge described this as “a material and unacceptable departure from the statutory procedure for applying for an allotment.”
The effect of Hufanga’s decision to withhold Makaui’s application was to cause the Minister to consider Havelu’s application as an uncontested first received application for a hitherto vacant piece of land.
As a consequence of this and a reliance on the Estate Holder’s certificate of approval alone, without any further enquiries being made, taken together with the suppression of Makaui’s application were that the Minister acted on the basis of materially incorrect information given to him.
As a result, he acted on wrong principles and the grant must be set aside. It was now for the Minister to decide whether the land was actually available to grant.
The main points
- The Minister of Land was misled into approving a grant of land, the Lands Court has decided.
- The case involved a block of land at Pea, part of the Lavaka It was granted to Viliami Fonise Havelu on January 13, 2014.
- In his report on the case, Mr Justice Scott said that the agent representing the land’s Estate Holder, Salesi Fotu, had prevented another application for the land reaching the Prime Minister.
- He described this as an unacceptable departure from the statutory procedure for applying for an allotment.
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