The Lands Court has ordered a family to vacate a block of land after it found they were living there illegally.
Havea Hikule’o Fonua was granted a town allotment at Kolofo’ou known as Sila’a.
He inherited Sila’a as heir following the death of his parents. For a time Havea was also registered as the holder of another town allotment that he had been granted earlier, known as Feingaola.
When this was discovered by the Ministry of Lands, Havea was told that he had to surrender Feingaola. Feinagola was then granted to ‘Alifeleti ki Ha’angana
This action arose because Havea’s brothers Fifita and ‘Alifeleti, were given permission to live temporarily on Sila’a by Havea, but then refused to leave.
Havea and his son, Nafetalai Fifita Niua Fonuai, sought an order evicting Fifita and ‘Alifeleti from Sila’a. They also sought the cancellation of ‘Alifeleti’s registration of Feingaola in favour of Nafetalai who they say should have succeeded to Feingaola as Havea’s heir.
Fifita and ‘Alifeleti argued that Havea could not lawfully hold two town allotments at one time and the grant to him of Sila’a was void under Section 48 of the Land Act.
In his summary of the case the judge said it appeared Havea was not required to complete an heir’s affidavit when claiming Sila’a and the Ministry was not then aware that he already held Feingaola.
“There was nothing sinister about this,” the judge said.
“Havea impressed me as an honest witness with an imperfect knowledge of Tongan land law.
“He understood that he was not allowed to hold two town allotments and that upon claiming Sila’a he would have to surrender Feingaola.
“However, he mistakenly thought that he was able to decide to whom Feingaola would be given. He offered Feingaola to his brother in the United States who did not want it.
“When the Ministry of Lands became aware that Havea held Feingaola he was told that he had to surrender it. Havea then decided to give Feingaola to ‘Alifeleti as he did not have any land of his own. It does not appear that anyone considered at the time that Havea’s grant of Sila’a was defective or that Nafetalai, not ‘Alifeleti, should inherit Feingaola.”
Havea wrote to the Minister on January 4, 2012, asking that Feingaola be transferred to ‘Alifeleti.
On receipt of Havea’s letter the Ministry regarded Feingaola as having reverted to the Crown.
‘Alifeleti applied for Feingaola on 9 May 2012 and it was granted to him on 12 October 2012.
In around 2012, Havea asked ‘Alifeleti to live on Sila’a and look after the property for him. Around the same time, Fifita asked Havea if he and his family could live on Sila’a and Havea agreed.
Havea said the arrangement he had with Fifita and ‘Alifeleti was that they would live on Sila’a free of charge on a temporary basis until he wanted it back.
In 2016, Havea asked Fifita and ‘Alifeleti to vacate Sila’a. When they did not do so he had his lawyer, Mrs. Vaihu, write to them in January 2017 requiring them to leave by 1 March 2017.
On 22 February 2017, Fifita’s lawyer, Mr. Corbett, wrote to Mrs. Vaihu. He asserted that Netane and Mele had wanted Sila’a to be subdivided for their four sons and sought the division of the land in accordance with the parents’ wishes. He advised that Fifita would not vacate Sila’a without a Court order.
Having considered the evidence and legal precedents, the court ordered that Fifita and ‘Alifeleti and members of their families and anyone else occupying Sila’a with their permission or consent are to immediately vacate Sila’a.
They were ordered to leave behind any possessions of Havea, including the main dwelling house and all its fittings.
The court ordered the Ministry to cancel ‘Alifeleti’s deed of grant for Feingaola.
Nafetalai now had to apply for Feingaola.
Havea and Nafetalai were entitled to costs.