By Linny Folau
Nina Halatanu won her claim against her late husband’s first wife and heir to evict them from a town allotment in Nukuleka, in a ruling by a Land Court judge who found that, for the time being, no rights exceed hers as widow.
Justice Tupou and Land Assessor, Fuiva Kavaliku, delivered the judgment against the defendants, the first wife Fe’ofa’aki Lafo’ou and Mele Metui Halatanu (heir's wife) at the Land Court in Nuku’alofa on 16 July. The first and second defendant occupy the town allotment in which the plaintiff sought orders for their eviction.
The court heard that the plaintiff, Nina, is the widow of the late Talalima Moala Halatanu who passed away on 22 August, 2023.
“On the whole the defendants’ challenge was an unfortunate misconception of their own as well as their children’s actual legal interests or lack thereof in respect of the allotment after Talalima’s untimely passing. Clearly, a time will come when Malakai, as heir, will claim the allotment, but for the time being the plaintiff is correct that no other right exceeds hers over it."
The judge stated that the first defendant is Talalima’s first wife. The second defendant is the wife of Talalima with the first defendant's eldest son (Talalima’s heir,Malakai). They challenged their eviction on the following grounds: they have no knowledge of the plaintiff’s claim and registration of the subject to the town allotment, the plaintiff did not participate in the loan repayments relating to the house on the allotment, and they are on the allotment to look after their children.
The first defendant, Fe'ofa'aki pleaded further grounds of defence: that she had lived on the allotment since 2011 without Talalima taking any steps to evict her and the plaintiff whose interest and claim is through Talalima is time barred.
She argued that through Talalima’s omission to evict her, the plaintiff by his conduct is estopped from evicting her; that the children of the marriage have a right to be on the allotment and that right extends to her. She also added that she spent money on maintenance on the house and an extension in 2022, this court has no jurisdiction to evict her under this suit, the plaintiff is not a legal citizen of the US and will not return to Tonga, but has damaged the peace and security of the children of the marriage through this action and the allotment is big enough to accommodate the plaintiff if she wished to build a house on it.
Meanwhile, the judge found the facts proven was that Talalima married the first defendant on 24 April, 1991. Talalima is the registered holder of a town allotment known as “Manatu ‘Ofa” consisting of 1403m2 registered on 15 June, 1993.
They built a home and raised their children on the allotment. There were six children of that marriage, of whom Malakai Halatanu is the eldest. Talalima left their home for the United States of America in 2011 and the first defendant filed for divorce. Their marriage was dissolved on 9 September, 2014.
The first defendant continued to reside with the children of the marriage on the allotment. Malakai is married to the second defendant and they too lived on the allotment with their children on the allotment.
Talalima then married the plaintiff on 21 August, 2015 in the United States of America and had resided there since. On or around 2018-2020, the plaintiff was able to make contact with some of her step children and eventually the first defendant. The plaintiff then started to help them.
The judge stated that Talalima died on 22 August, 2023 and the plaintiff claimed her life estate as Talalima’s widow over the town allotment on 15 December, 2023. This was approved by the Minister of Lands and registered on 5 February, 2024.
All seemed well until the plaintiff gained rights over the allotment. It arose from posts on social media and no one gave any detailed evidence about it, but it obviously damaged the harmonious relationship that existed before it. The plaintiff stated she will not forgive the defendants and wants both of them evicted from her allotment.
The first defendant gave evidence the essence of which was a concern for her children, who are not able to look after themselves and a son who suffers from heart problems. She called three of her children who all expressed their wish to have their mother to remain with them. They all told the court that they preferred to be with their mother.
Malakai said that he would not be able to look after his family if his mother left. However, in answering questions from the bench, it was clear he had been employed with a company Vaitohi but quit because he was fed up with waking up early in the mornings. Then he was employed with construction of the foreshore on the eastern side of Tongatapu earning up to $100 a day. On that account, he is well able to look after himself and his family if he so wished, stated the judge.
Moreover, the second defendant said that if this court were to decide that the plaintiff held the power over the allotment then she had nothing further to say. She said that she has a home to go to and she and her mother in law would be fine. It was their children she was worried about.
Widow's power
The judge stated that Section 80 of the Land Act provides: “On the death of the lawful male holder of any tax or town allotment his widow shall be entitled to a life estate in such allotment which estate shall terminate on her remarriage or upon proof in legal proceedings (as provided by section 81) of her having committed fornication or adultery."
“The plaintiff had made her claim and now has an unfettered right over the allotment. I heard nothing in the defendants’ evidence to impugn the plaintiff’s title and interests on the allotment, and there was also no indication that the further defences pleaded were being pursued, she added.
"On the whole the defendants’ challenge was an unfortunate misconception of their own as well as their children’s actual legal interests or lack thereof in respect of the allotment after Talalima’s untimely passing. Clearly, a time will come when Malakai, as heir, will claim the allotment, but for the time being the plaintiff is correct that no other right exceeds hers over it.”
Meanwhile, the first defendant confirmed that there were no orders in relation to the house at the time of her divorce and that no letters of administration had been obtained by anyone in terms of Talalima’s estate.
In relation to the house, the plaintiff inherits it under section 16 of the Probate Act that states:“The widow shall inherit the dwelling house on the town allotment (and if more than one the Court shall decide which one shall go to the widow), the growing crops, pigs and poultry and ngatu whether the deceased left a will or not but the rest of the property of an intestate shall be divisible according to Schedule 1 hereto.”
The judge added that the first defendant’s claim for maintenance and an extension were not sufficiently particularized leaving the court in no position to give a ruling on it.
“However, should it be considered of significance and outside of fair wear and tear and maintenance for her family’s own comfort, the first defendant may wish discuss such costs with the plaintiff and in default of reaching a satisfactory arrangement, is at liberty to bring the matter back before this court.”
The judge then ruled that the plaintiff’s claim is successful and ordered that the first and second defendant, together with their agents and representatives are to vacate the plaintiff’s allotment. The plaintiff was also entitled to her costs to be fixed by the Registrar if not agreed.
