Lord Chief Justice Paulsen of the Tonga Land Court scolded the Minister of Lands Hon. Ma’afu in a ruling of a land dispute case on 5 February. The ruling dismissed a decision by the Minister of Lands to regrant land registration to an overseas-based Tongan man. The man wanted to evict his niece who had been living on a town allotment in Fanga.
In his ruling, Justice Paulsen stated that it was wrong for the Minister of Lands to grant the piece of land to a Tongan-born US citizen Sifa Pekipaki, because Sifa intended to evict his niece Lanuola Fifita, who had been living and building on the land for more than 40 years.
Justice Paulsen stated “An overall evaluation of the facts of this case cannot but trigger an instinctual impulse that the Minister's decision inflicts real injustice. The effect of the Minister's decision is to remove Lanuola and her family from their home despite 40 years of uninterrupted occupation and substantial development in favour of Sifa, who does not reside in Tonga…”
Justice Paulsen also criticized the Minister of Lands for not recording a written reason for his decision, and noted that this was a common difficulty judges faced.
He stated, “One of the difficulties that the Land Court regularly faces in making such an assessment is that it is not the Minister's practice to give written reasons for his decisions nor does the Minister give evidence with detail of his decision-making process, the facts that he relied upon or the reasons supporting his decision.”
“This is unfortunate and out of step with established principles that decision makers have a duty to disclose such matters so as to facilitate the Court's function to do justice between parties.”
Justice Paulsen further criticized the Minister of Lands for failing to make proper enquiries into the case, and for not giving Lanuola a reasonable opportunity to state her views.
“The Minister did not know about the extent of Lanuola's efforts to claim the allotment because he did not ask her what efforts she had made.”
“What is of particular note is that the Minister asked no questions about the history and nature of Lanuola's occupation of the allotment, except to the very limited extent that he asked her how she came to be on the allotment. The Minister did not ask Lanuola about the work she had done to maintain and fill the allotment, how the buildings came to be on the land, who owned the buildings, what they had cost and who was now occupying them and for what purpose.”
The Case
According to Justice Paulsen’s ruling, Sifa moved to the United States in 1970 and became an American citizen on 27 May 1982. Under the old Tongan Nationality Act, Sifa lost his right to his town allotment once he became a foreign national.
In 1978 Lanuola Fifita, a niece of Sifa was advised by ‘Amelia Tongilava, a sister of Sifa to move in and live at Sifa’s House in Fanga. During the 1980s, Sifa’s house was destroyed by Cyclone Hina and Lanuola rebuilt a house on the property. Lanuola also invested $10,000 to build a restaurant on the property.
In 2007, Tonga amended its Nationality Act, making it possible for any person who had ceased to be a Tongan subject prior to the amendment of the act to be readmitted as a Tongan national.
On 26 September 2016 Sifa was re-admitted as a Tongan national and on 28 September he applied to be re-granted his allotment. On 19 December 2016 the allotment was registered to Sifa and he was issued with a deed of Grant 439/46.
On 3 February 2017 Sifa Holakinualei Pekipaki and his lawyer, David Corbett took the matter to the Land Court to evict Lanuloa. Lanuloa submitted that the allotment was not available for grant and that the Minister of Land failed to make proper enquires, observe natural justice and avoid obvious mistakes.
The Chief of Justice Paulsen agreed with Lanuola and declared that the Minister’s decision to grant the allotment to Sifa was invalid and directed the Ministry of Lands to cancel the grant.
Justice Paulsen also ordered that the “Minister is directed to make a fresh decision on the applications that are presently before him and any others that may be made in respect of the allotment after giving all parties an opportunity to be heard.”
- Reporting by Finau Fonua / Matangi Tonga
