The Land Court of Tonga has ordered two brothers to vacate their older brother’s town allotment known as "Sila’a" in Kolofo’ou.

This action was between the plaintiffs Havea Hikule’o Fonua and his son Nafetalai Fifita Fonua against Havea's younger brothers Fifita Niua Fonua, ‘Alifeleti ki Ha’angana Fonua and the Minister of Lands (defendants).

The President of the Land Court, Lord Chief Justice O.G. Paulsen ruled the plaintiffs successful on June 8.

He ordered for the two younger brothers and members of their families to immediately vacate Sila’a and leave any possessions including the main house belonging to their older brother.

This action arose because Fifita and ‘Alifeleti, who were given permission to live temporarily on Sila’a by Havea, had refused to leave.

Havea and his son, who was not yet 16-years-old, sought an order evicting them from this land. They also sought to cancel ‘Alifeleti’s registration of another town allotment Feingaola situated at Sopu for Nafetalai, whom they claimed should succeed to it as Havea’s heir.

The two defendants argued that Havea could not lawfully hold two town allotments.

Dispute

The court heard that Havea was granted Sila’a, which he inherited as heir following the death of his parents. For a time, he was also registered as the holder of Feingaola.

When this was discovered by the Ministry of Lands, Havea was told that he had to surrender Feingaloa, which was then granted to the second defendant ‘Alifeleti.

The President said Havea’s claim for possession of Slia’a is founded upon his rights as holder, which prima facie entitles him to an order ejecting his younger brothers unless they successfully challenge his title or establish a right at law or equity to be in occupation.

He said the only basis, which the defendants can contend that Havea may not eject them, is that his title is void under section 38 of the Land Act.

As they had been unsuccessful in establishing that, it followed that Havea was entitled to an order that they vacate his land. As evidence showed the Minister had consented to ‘Alifeleti’s application for Feingaloa in the belief that it had reverted to the Crown.

"This clearly was an error of law. The effect of Section 86 is that the allotment shall be granted to trustees for the benefit of Nafetalai."

He said it is for Nafetalai or some person on his behalf to now make application for Feingaola in according with section 87 of the Act.

Evidence

He said Havea impressed him as an honest witness with an imperfect knowledge of Tongan land law. He understood he was not allowed to hold two town allotments and that upon claiming Sila’a he would have to surrender Feingaloa.

However, Havea mistakenly thought that he was able to decide to whom Feingaola would be given, and had offered the land to his brother in the Untied 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 Feingaloa to ‘Alifeleti as he did not have any land of his own.

He said Havea in 2012 wrote to the Minister of Lands that Sila’a had been transferred to him and that he requested the other allotment to be transfered to ‘Alifeleti.

Havea said he had four children including a son, which perhaps should have alerted the Ministry to the fact that his request to transfer Feingaloa to ‘Alifeleti might not be in accordance with the Land Act. The Ministry regarded Feingaloa as having reverted to the Crown. Alifeleti applied for it and was granted to him.

The court also heard that Havea had asked ‘Alifeleti to live on Sila’a and look after the property for him.

Havea thought this would allow his brother to build his own house on Feingaola, which I understand was not done. Around this time Fifita asked Havea if he and his family could live on Sila'a and Havea agreed. Although Fifita had a town allotment at Houmakelialo, he preferred to rent out that property and use the money to pay his loan, he said.

Havea said which was not disputed that the arrangement he had with his two brothers was that they would live on Sila'a free of charge on a temporary basis until he wanted it back.

However in 2016, when he asked them to vacate the land they had refused, which led to this action.

The plaintiffs in winning were awarded costs, while a counter claim by the defendants was dismissed.