The Land Court has ordered a defendant to vacate a block of land in Ma’ufanga known as Kape within 30 days after dismissing his claim that he could not be removed.
In his judgement, the president of the Lands Court, Mr Justice Paulsen, said Peauafi Filimoehala had completely failed to prove his entitlement to remain on the land.
An earlier challenge to an eviction notice by Fotofili Filimoehala had been withdrawn after an agreement was reached with the land’s owner, Peni Toloa Filimoehala.
Peni Toloa Filimoehala launched an action to evict the first and second defendants and their respective families from the land and damages for loss of use of the land since he obtained his registration in 2011 in the sum of $50,000 along with interest and costs.
Mr Justice Paulsen said It had been established in a hearing ion 2015 that Peni Toloa Filimoehala was lawfully registered as the holder of Kape.
The land was originally in the possession of Penisimani Filimoehala, who  applied for Kape as his town allotment. For reasons that are not clear Penisimani did not receive his deed of grant for Kape until 1982.
Penisimani Filimoehala married twice. His eldest son with his first wife was Uatesoni Toloamoelama Filimoehala (Toloa). Toloa’s eldest legitimate son is Peni Toloa Filimoehala. When Penisimani died Kape was claimed by his second wife, Vasitai Filimoehala, as her widow’s estate. Toloa predeceased Vasitai. When Vasitai died Kape was claimed by Peni Toloa as Penisimani’s heir. Kape was registered in his name in April 2011.     Peauafi Filimoehala is Penisimani’s first son of his second marriage to Vasitai.
Peauafi moved off the land and left Tonga  permanently  in 1982.   He moved to the United States and obtained citizenship there and he still has a home there.
The judge rejected claims that Penisimani had promised that Peauafi would not be removed from the land and a series of claims about who had originally owned the land and who was entitled to it.
In his ruling on the 2015 hearing, the judge described Peauafi as an unconvincing witness and evasive.
“His evidence was  largely founded on an understanding of events that occurred  when he was very young and of which he could not in my view have any accurate recollection,†Mr Justice Paulsen said.
“In important respects what he said occurred, including in relation to the circumstances under which his family moved to Kape, was implausible and inconsistent with the conduct of the parties and contemporaneous documents.
“He took positions which he must have known were  plainly wrong, such as his evidence that  he has had possession of Kape for 63 years when in fact he has lived in the United States since  1982.â€
In his latest ruling the judge reconfirmed that Peauafi had no right to the land.
“Peni Toloa is entitled to possession of Kape and Peauafi had to vacate the land within one month of the date of this ruling,†Mr Justice Paulsen said.
However, the judge did not order compensation to be paid because there was no evidence of financial loss.
The main points
- The Land Court has ordered a defendant to vacate a block of land in Ma’ufanga known as Kape within 30 days after dismissing his claim that he could not be removed.
- In his judgement, the president of the Lands Court, Mr Justice Paulsen, said Peauafi Filimoehala had completely failed to prove his entitlement to remain on the land.
- Mr Justice Paulsen said It had been established in an earlier court case that Peni Toloa Filimoehala was lawfully registered as the holder of Kape.
- An earlier challenge to an eviction notice by Fotofili Filimoehala was withdrawn.
