Tonga's Supreme Court has found that the Minister of Lands unlawfully cancelled the lease of the Fakafanua Centre property to the late Kalolaine Fakafanua, and an injunction will be issued to prevent the Noble Fakafanua, and other defendants, the ANZ Bank, Cabella Construction Ltd and the Minister of Lands from carrying out any further construction work on a new building at the centre, opposite the Queen Salote Wharf in Nuku'alofa.

The land dispute between the young Noble Fakafanua and his two uncles and aunties ended in court when the noble claimed ownership of the property, after he cancelled the lease of the commercial centre to his grandmother, Kalolaine Fakafanua who died in July 2007.

Chief Justice Ford stated in his judgment delivered on Wednesday, that the Supreme Court in its probate and administration jurisdiction called on the Minister of Lands Hon. Tuita to take appropriate steps to revoke the purported cancellation of the lease.

Mr Justice Ford also said that further orders would also be issued in the immediate future requiring the accounting of all monies received and paid in connection with the estate since the date of the intestate's death.

An independent auditor may be appointed by the court to carry out this reconciliation exercise, with a notice to be issued to tenants at the centre as to where and how they should pay future rental payments.

"In the course of the hearing, I took the rather unusual step of urging counsel to explore the possibility of trying to negotiate an out of court settlement. However in spite of the best efforts settlement did not prove possible.

"I recognise this case is essentially a family dispute involving one of the Kingdom's most prominent families," said Chief Justice Ford. "I am nonetheless confident that with little goodwill, commonsense and traditional Tongan forgiveness on all sides it is not too late for the parties to revisit this question of settlement. Unless wiser heads prevail it will obviously be some time before all matters relating to the estate in question are resolved."

In these circumstances he declined to make any order as to costs.

Title remains with court

Chief Justice Ford clarified in Section 11 of the Probate and Administration Act, all of Kalolaine's personal estate including the lease, which he found to be existing and the rents from the centre vested in the court from the moment of her death.

"Such title remains with the court until the grant of letters of administration. The actions of the first defendant Noble Fakafanua in taking over the rents and entering into possession are a flagrant breach of Section 11 likewise with the fourth defendant the Minister of Lands."

It was not open to the Minister to take any action that might undermine the status of the estate property that had become vested in court. In purporting, therefore to cancel the lease, the Minister like other parties to this action he acted contrary to the Act, said the Chief Justice.

Wrongful meddling

He added in other matters, the problem for the plaintiffs, which is Kisione Fakafanua, Si'atu Vaea, Paku Fakafanua, Polotu Paunga, Mele Tu'iha'angana and Ma'ata Paea, is that the evidence clearly established, "they also wrongfully intermeddled with the estate."

He said the court heard evidence that one of the plaintiffs apparently on behalf of the others collected the rents for a period and paid to the church in the sum of $10,000 towards missionary offering for Kalolaine some months after her death.

"Quite simply what appears to have happened is that all parties of this litigation have to varying degrees taken matters into their own hands in flagrant disregard to Section 11. To that extent they are all chargeable as executors de son tort."

The hearing was held on March 28- 31. Laki Niu represented the plaintiffs and Tevita Tupou represented Noble Fakafanua with Senior Crown Counsel 'Aminiasi Kefu acting for the Minister of Lands.