The Land Court has ordered a defendant to vacate a block of land in Ma’ufanga known asÂ Kape within 30 days after dismissing his claim that he could not be removed.
In his judgement, the president of the Lands Court, Mr Justice Paulsen, said Peauafi Filimoehala had completely failed to prove his entitlement to remain on the land.
An earlier challenge to an eviction notice by Fotofili Filimoehala had been withdrawn after an agreement was reached with the landâs owner, Peni Toloa Filimoehala.
Peni Toloa Filimoehala launched an action to evict the first and second defendants and their respective families from the land and damages for loss of use of theÂ land since he obtained his registration in 2011 in the sum of $50,000 along with interest andÂ costs.
Mr Justice Paulsen said It hadÂ beenÂ establishedÂ inÂ a hearing ion 2015 that Peni Toloa FilimoehalaÂ was lawfully registered as the holder of Kape.
The land was originally in the possession of Penisimani Filimoehala, who Â applied for Kape as his town allotment. For reasons that are not clear Penisimani did not receive his deed of grant for Kape untilÂ 1982.
Penisimani Filimoehala married twice. His eldest son with his firstÂ wife was Uatesoni Toloamoelama Filimoehala (Toloa). Toloa’s eldest legitimate son is Peni Toloa Filimoehala. When Penisimani died Kape was claimed by his second wife, Vasitai Filimoehala, asÂ her widow’s estate. Toloa predeceased Vasitai. When Vasitai died Kape was claimed by Peni Toloa as Penisimani’s heir. Kape was registered in his name in AprilÂ 2011.Â Â Â Â Â Peauafi Filimoehala is Penisimani’sÂ firstÂ sonÂ ofÂ his secondÂ marriageÂ to Vasitai.
Peauafi movedÂ offÂ theÂ landÂ andÂ leftÂ TongaÂ Â permanentlyÂ Â inÂ 1982.Â Â Â He movedÂ toÂ theÂ UnitedÂ StatesÂ andÂ obtainedÂ citizenshipÂ thereÂ and heÂ stillÂ hasÂ aÂ homeÂ there.
The judge rejected claims that Penisimani had promised that Peauafi would not be removed from the land and a series of claims about who had originally owned the land and who was entitled to it.
In his ruling on the 2015 hearing, the judge described Peauafi as an unconvincing witness and evasive.
âHisÂ evidenceÂ wasÂ Â largely foundedÂ onÂ anÂ understandingÂ ofÂ eventsÂ thatÂ occurred Â whenÂ heÂ was veryÂ youngÂ andÂ ofÂ whichÂ heÂ couldÂ notÂ inÂ myÂ viewÂ haveÂ anyÂ accurate recollection,â Mr Justice Paulsen said.
âIn importantÂ respects whatÂ he saidÂ occurred,Â includingÂ in relationÂ toÂ theÂ circumstancesÂ underÂ whichÂ hisÂ familyÂ movedÂ toÂ Kape, wasÂ implausibleÂ andÂ inconsistentÂ withÂ theÂ conductÂ ofÂ theÂ partiesÂ and contemporaneousÂ documents.
âHeÂ tookÂ positionsÂ whichÂ heÂ mustÂ have knownÂ wereÂ Â plainlyÂ wrong,Â suchÂ asÂ hisÂ evidenceÂ thatÂ Â heÂ hasÂ had possession of Kape forÂ 63 yearsÂ whenÂ in factÂ he has lived in theÂ United StatesÂ sinceÂ Â 1982.â
In his latest ruling the judge reconfirmed that Peauafi had no right to the land.
âPeni Toloa is entitled to possession of Kape and Peauafi had to vacate the land withinÂ one month of the date of this ruling,â Mr Justice Paulsen said.
However, the judge did not order compensation to be paid because there was no evidence of financial loss.
The main points
- The Land Court has ordered a defendant to vacate a block of land in Ma’ufanga known as Kape within 30 days after dismissing his claim that he could not be removed.
- In his judgement, the president of the Lands Court, Mr Justice Paulsen, said Peauafi Filimoehala had completely failed to prove his entitlement to remain on the land.
- Mr Justice Paulsen said It had been establishedÂ inÂ an earlier court case that Peni Toloa FilimoehalaÂ was lawfully registered as the holder of Kape.
- An earlier challenge to an eviction notice by Fotofili Filimoehala was withdrawn.