The Land Court has overturned an attempt by the Minister of Lands to take away a block of land that was given to a New Zealand-based Tongan 18 years ago and give it to another man.
In February 1997 Havea Folau was allocated land belonging to the estate of Noble Ma’afu, the father of the present title holder, who is Minister of Lands.
The land was granted as a reward for raising funds for a sound system for a Seventh Day Adventist Church in the area. The then Noble Ma’afu’s daughter was involved in the fund raising in New Zealand.
The land in Vaini is between Beulah College, where Mr Folau taught before moving to New Zealand, and Hu’atolitoli Prison.
The land was not registered in Mr Folau’s name, although he believed he had fulfilled all the legal requirements for his application.
When he moved to New Zealand Mr Folau maintained his contact with Vaini and arranged for a former co-teacher at Beulah College, Vaioleti ‘Ofa, to look after the allotment for him.
The court was told that in 2000 Sione Taione, who occupied the allotment immediately to the south of Mr Folau’s land, gained Mr. Folau’s permission to use and maintain the allotment.
Sione tried unsuccessfully to persuade Mr Folau to sell him the land.
Then, on June 24, 2014, without telling Mr. Folau what he was doing, Sione Taione lodged an application with the Minister of Lands for the land to go to his son Johnny.
Noble Ma’afu signed his consent as estate holder on June 26 and 10 days later, in his role as Minister for Lands, ordered the Secretary of Lands to cancel Mr Folau’s application for the allotment and process Taione’s application instead.
In 2015, the Minister granted and then registered the land (Deed of Grant Tohi 354 Folio 93) in the name of Johnny Taione.
Mr Folau told the court he was not consulted by the Minister and said the land was not available for granting to Taione. Accordingly, the grant made to Taione was unlawful and should be declared null and void.
He argued that he had satisfied all other requirements of the Land Act and that there was nothing more for him or the Minister to do but to await the deed of grant for signature and registration.
Folau was never officially informed of the Minister’s decision and only learned of it when contacted by a member of the Lands Department by Facebook. Attempts to arrange a meeting with the Minister to discuss the issue were unsuccessful.
In his decision, the president of the Land Court, O.G.Paulsen, said he was satisfied that the land was allocated to Mr Folau, based on the evidence of the procedures followed at the time.
He said that there continued to be long delays in the preparation and registration of deeds of grant for land.
“It would be quite wrong for someone in Mr. Folau’s position to be deprived of his land as a result,” Mr Paulsen said.
He dismissed arguments by the Minister’s advocate that Mr Folau could not object to the transfer of the land because it was out of time.
He said the Minister’s actions constituted a breach of natural justice.
Mr Paulsen said Mr. Folau had established his entitlement to the land and as result the Minister had no power to cancel the grant or to make a grant of the land and register it in the name of Johnny Taione.
“I declare that the grant and registration of the land in Deed of Grant Tohi 354 Folio 93 in the name of Johnny Taione to be unlawful and invalid and order that it is to be cancelled forthwith,” Mr Paulsen said.
“I also order that the said land (Lot 5 SP5879) is forthwith to be registered into the name of Mr. Folau.”
The court awarded costs against all the defendants.
The main points
- The Land Court has overturned an attempt by the Minister of Lands to take away a block of land that was given to a New Zealand-based Tongan 18 years ago and give it to another man.
- In February 1997 Havea Folau was allocated land belonging to the estate of Noble Ma’afu, the father of the present title holder and Minister of Lands.
- In his decision, the president of the Land Court, O.G.Paulsen, said he was satisfied that the land was allocated to Mr Folau, based on the evidence of the procedures followed at the time.
- Mr Paulsen said the Minister had no power to cancel the grant or to make a grant of the land to somebody else.
