The Court of Appeal has ruled that Lord Fohe has no right to evict a family who have been living on land granted to them by the late Lord Fohe.
And the late Noble’s daughter, who represented his interests for seven years, has described the current title holder’s behaviour as shocking. Lord Fohe is now the government’s Minister of Agriculture, Food and Forestry (MAFF).
The Court of Appeal accepted that the late Lord Fohe had granted the land on his hereditary estate of Puke, that money and traditional gifts had been paid in recognition of the grant and that subsequently the land had been developed and a house built.
The appeal was heard before Judges Whitten, de Jersey, Harrison and Heath.
In his summary of the hearing, Judge Harrison said that until his death in 2009, Samiu Fohe held the hereditary title of Fohe and the hereditary estate of Puke in Tongatapu. After his death, the present title holder was appointed as successor by King Tupou VI in 2016.
In the latter stages of the late Fohe’s life, his daughter, Lupe, acted as his representative. That role afforded her the status of a “landholder” or “holder” of the estate. She continued in that role in the period between the late Fohe’s death and the installation of the current Lord Fohe in 2016.
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Before the late Fohe’s death, Ve’etutu Mahe, asked him for an allotment on the hereditary estate. Mr Mahe said he had taken possession of part of the estate and had made customary gifts to the late Fohe, as well as carrying out some repairs and maintenance to the late Fohe’s house without charge.
In the period between the late Fohe’s death and the appointment of Lord Fohe in 2016, Mr Mahe built a house on the land, in which he and his family now live. Mr Mahe said the late Fohe had promised to arrange a grant of the allotment and registration in his name, but that was not completed before his death.
Following his installation, Lord Fohe indicated he was not prepared to honour any promise of the type that Mr Mahe alleged had been made and issued a claim in the Land Court before Judge Niu to evict Mr Mahe from the area that he occupied. At the time the proceeding was issued, there were four defendants, but Mr Mahe was the only one who actively defended the claim.
Judge Niu ruled that Lord Fohe ought to have taken charge of his father’s estate and inheritance. He appointed the town officer as his representative only after he assumed the title.
By that time Mr Mahe and his wife and children had already been residents of the estate for two years. This meant they has already become “lawfully resident” in Puke.
Judge Niu further ruled that the newly appointed Lord Fohe could not evict Mr Mahe and his family or seek damages from them. However, he rejected Mr Mahe’s counterclaim for a grant of the allotment. Lord Fohe appealed Judge Niu’s decision.
The Court of appeal supported Judge Niu’s finding that Lord Fohe could not evict Mr Mahe because he had acquiesced in Mr Mahe’s occupation of the property.
Judge Harrison said that in appreciation for the grant of the land Mr Mahe had given Lord Fohe a total of TP$5500 over the years, as well as customary gifts of yams and pigs.
The late Lord Fohe’s daughter Lupe, who took care of his interests for several years, said she had asked the land surveyor to sub-divide the whole area of land (of 14 acres) so that the piece of land allocated to Mr Mahe could be registered, but that her father died before that could be done.
Mahe began building his house on the land in 2012.The town officer, Malolo Tupou, was aware of the construction of the house, but he did not stop it or question the right of the defendant to build it and to live in it with his family.
“The late Fohe indicated to Mr Mahe the allotment on which he subsequently built, and his daughter Lupe, while the late Fohe’s representative, set in train the process for subdivision and registration, although that was not accomplished prior to the late Fohe’s death,” Judge Harrison said.
“Lupe also encouraged Mr Mahe to build on the land after the death of late Fohe.”
Judge Harrison said Lupe had acted as the de facto representative of the late Fohe’s eventual successor before he took up the title.
Given Mr Mahe’s occupation and development of the land the late Fohe would have been stopped in law from evicting Mr Mahe and so was Lord Fohe, who raised no issue until the Notice to Vacate was issued in May 2017.
In her evidence to the Court of Appeal, Lupe said she was shocked by Lord Fohe’s behaviour in the case.
“I didn’t anticipate that he would treat the people this way” she told the court.
“I thought that he would continue with good grace the work my father did and that is why I was shocked.”
