Land Court finds Lands Minister failed to comply with Act in dispute over tax allotment

    Tu'utu'uni e fakamaau kelekele 'o tali e tangi 'a Paula Kava fekau'aki mo 'ene loto ke fakafoki ange hono kelekele ne fakatau 'e Looti Nuku 'i Malapo. Na'e fakatau 'eni 'e he nopele ma'a hono foha ko Faka'osifono fe'unga mo e pa'anga 'e $130,000. Tanaki atu ki he'ena alea ke 'oange 'e Nuku 'a e 'api tukuhau 'i Ha'ateiho pea tanu mo e 'api nofo'anga 'i Tofoa 'o e tokoua 'o Paula. Na'e 'ikai hoko e tanu 'o e 'api 'i Tofoa ne na alea ki ai pea iku toki'ilo hake ko e 'api ia 'i Ha'ateiho ne 'osi lesisita ia he hingoa 'o e taha kehe. Ka koe'uhi foki ne 'osi foaki tohi 'e Paula kia Nuku hono 'api 'i Malapo he 2011, na'e tu'utu'uni leva 'e Nuku ia ke kamata e ta mo fetuku maka mei ai 'a e kautaha Siaina ko e Yan Jian Group Co. Ltd. Na'e tangi leva 'a Paula ke fakafoki mai hono kelekele meia Nuku he kuo 'ikai fakakakato 'ena alea'. Ko Malapo foki ko e tofi'a ia 'o Looti Luani pea na'e iku foki 'o hopo'i 'e Luani 'a Nuku mo e kautaha Siaina 'i he kelekele ko 'eni 'o mo'ua $3 kilu tupu ai 'a Nuku mo e Siaina' ko 'ena maumau'i 'a e kelekele he tata maka ne fai. Ne iku foki 'o ta'ofi 'e Looti Luani 'a e tata maka mei he 'api tukuhau ni pea ne pehe kuo 'osi foki ange 'api ia kiate ia. Kaekehe ne tukuaki'i 'e Fakamaau Laki Niu ne to nounou e Minisita Fonua ko e 'ikai ke ne fakakakato 'a e lao ki hono fanongonongo 'a hono tuku ange 'o e 'api ne fai ai 'a e alea kae lava ke tala 'e Paua. Na'a ne toe tu'utu'uni kia Looti Luani ke ne tuku ange 'a e 'api 'o 'ikai ha'ane toe totonu ki ai pea ke kamata fo'ou 'a e Potungaue Fonua hono fakakakato e fiema'u kae fakafoki e kelekele 'o Paula.

    The Land Court has ruled in favour of the plaintiffs in a long running dispute over a tax allotment that has previously involved a dispute between two Nobles and a Chinese quarry company.

    Judge Niu’s judgement was based on the Minister for Land’s failure to properly publicise the proposed surrender of the allotment.

    In January 2011, Lord Nuku and Paula Kava made an agreement that Paula Kava would surrender his tax allotment at Malapo and that Lord Nuku’s son, Faka’osifono Valevale, would apply to hold it as his tax allotment.

    In return Lord Nuku would pay him $130,000 in cash and would have another tax allotment granted to him in the estate of Ha’ateiho.

    Lord Nuku would arrange to have Paula Kava’s brother’s town allotment at Tofoa, which was low-lying, filled with coral to an agreed level.

    Paula Kava explained that agreement to the first plaintiff and that as he was the heir to his tax allotment, he would not lose out under the agreement because another tax allotment at Ha’ateiho would be granted to him and that the first plaintiff would still be heir to it, as he was to the Malapo allotment.

    The first plaintiff agreed to it and signed a letter of Paula Kava to the Minister of Lands that he, Paula Kava, wanted to surrender his said tax allotment at Malapo.

    The agreement was made so that Lord Nuku’s son could lease it to a Chinese company which would quarry coral rocks from the allotment for road construction at a rent of $500,000 for 20 years.

    Lord Nuku paid the agreed $130,000 to Paula Kava and authorised the Chinese company to commence quarrying on the allotment and it did.

    However he failed to have the town allotment of Paula Kava’s brother filled with gravel or secure the grant of the tax allotment at Ha’ateiho to Paula Kava, who asked Lord Nuku that quarrying be stopped until the exchange for his tax allotment was completed.

    On 27 June 2011, because nothing had been done by Lord Nuku Paula Kava wrote to the Minister and cancelled his letter of surrender of his tax allotment.

    Having been told that the tax allotment at Ha’ateiho was available to be granted, Paula Kava wrote to the Minister to proceed with his surrender of his tax allotment and lodged his application and asked the Minister to process his application for the tax allotment at Ha’ateiho.

    Samiuela Kava, who claimed that he was the lawful heir of Paula Kava, was not immediately unaware of this letter or the continuation of the surrender.

    Cabinet approved the surrender of the allotment under S. 54 of the Land Act in February 2012.

    The Minister signed a notice which called on any person who claimed he was heir to the allotment to lodge his claim in writing with the Minister, failing which it would revert to the estate holder.

    Paula Kava was subsequently told he would have to wait a year for the surrender to be complete. After a year he was told the tax allotment at Ha’ateiho that he was applying for, had already been registered in someone else.

    He wrote to the Minister of Lands in 2013 asking for advice.

    “I am very disappointed and unhappy about the lie and incorrect advice that was given to me,” he said.

    “I have already surrendered my allotment and lost it and I have not got another.”

    Because of the letter of surrender signed by Paula Kava in 2011, Lord Nuku authorised the Chinese Technical Team company, Yan Jian Group Co. Ltd, to begin quarrying coral rocks from the tax allotment of Paula Kava.

    It did not cease to stop quarrying until Lord Luani stopped it in May 2013 when he claimed that the tax allotment of Paula Kava had lawfully reverted to him.

    Lord Luani brought an action against Lord Nuku and Yan Jian Group Co. Ltd and another company for the damage caused by the quarrying done to the allotment. The Land Court awarded $5,556,000, damages.

    The defendants appealed to the Court of Appeal which upheld the decision of the Land Court, but lowered the amount of damages to $3,380,335.

    Samiuela Kava said that the tax allotment had not reverted to the estate holder, Lord Luani, in accordance with the requirements of S. 54 of the Land Act. He claimed the Minister of Lands had failed to comply with the requirements of the Act.

    Lord Luani argued that the tax allotment had lawfully reverted to him and that the matter had been litigated and the Court, as well as the Court of Appeal, had held that the tax allotment had lawfully reverted to him, and that he was awarded damages as lawful holder of the allotment.

    Judge Niu ruled that the Minister had failed to meet the requirements of the Act in having proper publicity given to the proposed surrender of the allotment.

    Only one notice appeared in the press and none in the government gazette.

    “Accordingly, as I have already found as a fact, that there was only one publication of the notice, I must hold, and I hold, that the tax allotment of Paula Kava has not reverted to the estate holder Lord Luani at all, and that it would not, until the Minister has published the notice exactly as he is required by to do and if the heir of Paula Kava does not claim it by the specified date in the notice,” Judge Niu said.

    “I consider that the Minister must start afresh, that is, that he must issue a fresh notice with a fresh specified date and publish it in the Government Gazette and in three issues of three Tongan newspaper within two months of the date of the fresh notice.

    “Upon publication of the first notice, the first plaintiff may then lodge his claim in writing with the Minister as provided in the notice.”

    The judge ordered that Lord Luani must immediately give up any right to the tax allotment under dispute.

    Costs were awarded against the defendants.

    Read more
    https://kanivatonga.nz/2017/05/lord-nuku-will-keep-title-estate-court-case-says-attorney-general/

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