Parties in Land Court case told to find a way to share land peacefully after long running case

Kuo fakaha ‘e he Fakamaau’anga Kelekele ha tu’utu’uni ki ha fakafekiki kuo taungaloloa mai ‘ene hoko. Ko e fekihiaki eni ‘i ha konga kelekele ‘i Kolomotu’a ne ma’u ‘e ‘Ilaisa Ngininginiofolanga. Na’e loto ‘a ‘Ilaisa ke langa ai ‘e Sosefo Nginingiofolanga ‘a hono fale pea ke ne nofo ai mo hono mali mo ‘ena fanau pea ne a’u ia ki ha ta’u ‘e 15 ‘enau nofo’i. Hili e mate ‘a ‘Ilaisa na’a ne foaki ‘e ia ha lisi ta’u ‘e 99 ‘o e kelekele ni ki hono ‘ofefine ko ‘Alisi. Na’e fiema’u leva ‘e ‘Alisi ia ke mavahe ‘a Lupe mo ‘ene fanau mei he kelekele ni hili foki ‘eni mo e mate ‘a Sosefo. Ne fakafepaki’i ‘eni e Lupe ‘o iku ki he fakamaau’anga pea ‘i he tu’utu’uni ‘a ‘Eiki Fakamaaulahi Paulsen ne ne fakaha ai na’e ‘ikai tonu ke tali ‘e he Minisita Fonua e lisi ‘a ‘Alisi na’e fai pea ke fakata’e’aonga’i ia. Na’e ‘ikai foki ke ne tali e taukapo ‘a ‘Alisi ‘o ne fakatonuhia’i ‘e ia ‘a Lupe mo ‘ene taukapo ke nau kei nofo pe ‘i he ‘api. Na’a ne toe tu’utu’uni ke foki ‘a ‘Alisi mo Lupe ‘o fekumi ki ha founga ‘e lava ke na nofo melino pe ‘i he konga kelekele ni.

The Land Court has told two rival parties in a dispute that they must learn to live together
on the same piece of land.

The order came as part of an adjudication on a multi-generational land dispute that has
been before the bench several times in the past few months.

The dispute centred on the rights to a town allotment in Kolomotu’a owned by Ilaisa

With Ilaisa’s consent, Sosefo Nginingini built a house on the allotment where he lived with
his wife Lupe and children for about 15 years. After his death Ilaisa granted a 99 year lease the allotment to his daughter ‘Alisi.

He also purported to gift the house to her. ‘Alisi demanded that Lupe move out of the
house and off the allotment, but he would not leave.

She asked the court to order Lupe to leave.

Lupe denied that ‘Alisi owned the house, arguing that the lease was invalid because the Minister failed to make adequate enquires before granting it. Lupe counterclaimed for the cancellation of ‘Alisi’s lease.

The case first came before Lord Chief Justice Paulsen in September last year. The case was
adjourned when it appeared the parties would settle, but this did not happen. The trial
resumed on 11 January 2018 and was completed the next day.

Lord Chief Justice Paulsen said he found Lupe to be a credible and honest witness.

“By comparison I did not find ‘Alisi credible and her evidence was neither compelling nor plausible.” The judge said.

In 1995 Ilaisa was registered as the holder of a town allotment at Tu’atakilangi,

He and his wife Ana had 11 children, of whom Sosfeo was the eldest son and heir.

Ana was employed as a maid for the Tu’ipelehake.

In 1997 Sosefo was unmarried and working as a seaman. Ilaisa allowed Sosefo to build a
house on his allotment.

Sosefo’s house was built and largely complete by 1999.

Sosefo married Lupe in 1999 and moved into Sosefo’s house.

In around 2000 Ana’s services were no longer required by the Tu’ipelehake. Her house at Fatai was moved to Ilaisa’s town allotment.

Ana moved into her house along with three of her children. Ana lived in her house until she

‘Alisi married in 1997. In around 1998 ‘Alisi travelled to New Zealand with the
Tu’ipelehake and prepared his meals. Upon her return to Tonga she lived with her
husband’s family until they separated in 2005.

In 2010 Sosefo applied for and was granted a town allotment at Kolomotu’a.

“The circumstances that allowed Sosefo to apply for the allotment are not altogether clear,
but I am satisfied that when the allotment became available Sosefo took the opportunity to
acquire it for his second son and that he never intended to live on the allotment,” Lord
Chief Justice Paulsen said.

Sosefo never moved onto the town allotment.

Ana died away in 2014 and after her death ‘Alisi and her children continued to live in Ana’s house.

Sosefo died on October 23, 2015. From his death Sosefo’s eldest son became Ilaisa’s heir, entitled to succeed to his town allotment.

A dispute then arose between ‘Alisi and Lupe.

“My assessment is that ‘Alisi was of the view that Lupe should move out of Sosefo’s house and to his town allotment,” the judge said.

“Lupe made it clear that she was not going to move. Ilaisa was aware that a dispute
had arisen. Very shortly after Sosefo’s death he suggested to Lupe that he might
subdivide the allotment between Lupe and ‘Alisi, but Lupe did not agree to that.

“It is not hard to understand why, when her eldest son was the heir and entitled to
succeed to the entire allotment in due course.”

On November 16, 2015 Ilaisa agreed to grant ‘Alisi a 99 year lease of his town allotment.

The application for lease was processed by the Ministry with unusual haste. ‘Alisi knew the case officer at the Ministry of Lands which might explain this. Cabinet consent was obtained on December 4, 2015 and the lease was registered on April 5 the following year.

Lupe was not aware of the lease until it was registered.

On March 7, 2016 Lupe claimed her widow’s interest in Sosefo’s town allotment.

The application was granted on March 17, 2016. She remained living with her children in
Sosefo’s house.

“For what reason then did Ilaisa grant ‘Alisi the lease?” the judge asked.

“I find there were two reasons. The primary reason was to provide ‘Alisi with the means to evict Lupe and to take Sosefo’s house. The second reason was so that ‘Alisi could not be removed from the allotment upon Ilaisa’s death should Sosefo’s son inherit the land.

“ ‘Alisi has no intention of allowing Lupe to remain on the land or in Sosefo’s house. “
The judge said that if the owner of land requested another, or allowed another, to expend
money on the land under an expectation created or encouraged by the landlord that he
would be able to remain there, that raised an equity in the licensee such as to entitle him
to stay.

“It is an equity well recognised in law,” he said.

“The equity cannot be satisfied other than by allowing Lupe to remain in her home on
the land. It is correct that Lupe has other land she could move to, but at the cost of the
upheaval of her life and the lives of her children, considerable emotional distress and
financial loss.

“It would be unjust to require her to move. Lupe may remain living on the allotment for
as long as she wants whilst Ilaisa is the holder of the allotment.

“The more difficult question is whether justice also requires me to make an order
cancelling ‘Alisi’s lease.

“The lease was a device to evict Lupe and defeat her rights. The existence of the lease is
antithetical to Lupe’s continued occupation and might be dealt with by ‘Alisi or her  successors (for instance by assignment or mortgage) in a manner that defeats Lupe’s rights.

I intend therefore to direct the Minister to cancel the lease.

“It should not be thought either that this ruling means that ‘Alisi must herself move off the allotment.

Sosefo and Lupe have never enjoyed the exclusive right to occupy the allotment.
Lupe and ‘Alisi will need to find means by which they can both live peacefully on the land.

“For as long as Ilaisa is the registered holder of his town allotment Ilaisa and ‘Alisi are not to take any steps to evict Lupe or her children from the allotment or interfere with their occupation of Sosefo’s house.”

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