Land Court orders expulsion from land after judge rules against defendant’s claims

    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.

    An earlier challenge to an eviction notice by Fotofili Filimoehala had been withdrawn after an agreement was reached with the land’s owner, Peni Toloa Filimoehala.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 the  land since he obtained his registration in 2011 in the sum of $50,000 along with interest and  costs.

    Mr Justice Paulsen said It had  been  established  in  a hearing ion 2015 that Peni Toloa Filimoehala  was lawfully registered as the holder of Kape.

    The land was originally in the possession of Penisimani Filimoehala, who  applied for Kape as his town allotment. For reasons that are not clear Penisimani did not receive his deed of grant for Kape until  1982.

    Penisimani Filimoehala married twice. His eldest son with his first  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, as  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 April  2011.      Peauafi Filimoehala is Penisimani’s  first  son  of  his second  marriage  to Vasitai.

    Peauafi moved  off  the  land  and  left  Tonga   permanently   in  1982.    He moved  to  the  United  States  and  obtained  citizenship  there  and he  still  has  a  home  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.

    “His  evidence  was   largely founded  on  an  understanding  of  events  that  occurred  when  he  was very  young  and  of  which  he  could  not  in  my  view  have  any  accurate recollection,” Mr Justice Paulsen said.

    “In important  respects what  he said  occurred,  including  in relation  to  the  circumstances  under  which  his  family  moved  to  Kape, was  implausible  and  inconsistent  with  the  conduct  of  the  parties  and contemporaneous  documents.

    “He  took  positions  which  he  must  have known  were   plainly  wrong,  such  as  his  evidence  that   he  has  had possession of Kape for  63 years  when  in fact  he has lived in the  United States  since   1982.”

    In his latest ruling the judge reconfirmed that Peauafi had no right to the land.

    “Peni Toloa is entitled to possession of Kape and Peauafi had to vacate the land within  one month of the date of this ruling,” 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 established  in  an earlier court case that Peni Toloa Filimoehala  was lawfully registered as the holder of Kape.
    • An earlier challenge to an eviction notice by Fotofili Filimoehala was withdrawn.

    1 COMMENT

    1. ʻI he tuʻutuʻuni fakafakamaauʻanga ko ʻení, ne pehē ai ʻe he palesiteni ʻo e Fakamaauʻanga Kelekele ʻa Tongá, Mr Justice Paulsen naʻe ʻikai pe ke malava ʻe Peauafi Filimoehala ke ne fakamoʻoniʻí ʻoku ʻi ai ʻa ʻene totonu ke kei nofo ʻi he ʻapi ko ʻeni ne hopoʻí. Kuo tuʻutuʻuni ai ko e totonu ki he ʻapi ko ʻení, ʻa ia ʻoku ui ko Kapé, ko Peni Toloa Filimoehala.

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