Fifita v Lakai [2017] TOLC 14; LA 27 of 2017 (20 November 2017)

IN THE LAND COURT OF TONGA

NUKU’ALOFA REGISTRY LA 27 of 2017

BETWEEN: TUTAMA FIFITA

First Plaintiff

PAULIASI FIFITA

Second Plaintiff

AND: PITA LAKAI

Defendant

BEFORE PRESIDENT PAULSEN

Date of Hearing: 20 November 2017

Date of Ruling: 20 November 2017

Counsel: Mr. V Moale for the plaintiffs

No appearance for defendant

RULING

The nature of the case

[1] This is an application for judgment by formal proof. The first plaintiff is the registered holder of a tax allotment at Longomapu, Vava'u. The second plaintiff is her eldest son and the heir to the allotment. They allege that the defendant has unlawfully occupied the allotment and seek an order for his eviction.

[2] After service of the proceedings upon him the defendant took no steps. He has had notice of the hearing today but again he has taken no steps.

The facts

[3] The first plaintiff (Tutama) is 75 years old. She is the widow of Saimone Fifita (Saimone) who was the registered holder of the tax allotment at Longomapu, Vava'u known as Ha'ano being 8a 1r 0p and all the land contained in Deed of Grant 182/83.

[4] Saimone passed away in 2003. Upon Saimone's death Tutama claimed the land as widow and she was registered as holder on 18 June 2003.

[5] The second plaintiff (Pauliasi) is Tutama's eldest son and the heir to the allotment. On a visit to Vava'u he discovered that the defendant was occupying the land and had built pig and sheep fences on the land. When asked why he was on the land the defendant said he had been given permission by the estate holder. The defendant refused to vacate.

[6] Tutama does not know the defendant and has not given him permission to be on her land. When she learned from Pauliasi that the defendant was on the land she authorised Pauliasi to take steps to remove the defendant.

[7] Pauliasi sought legal advice and a letter was served upon the defendant dated 24 April 2017 requiring him to leave the land but he has not done so.

[8] These proceedings were served on the defendant on 12 July 2017 and he filed no defence nor did he take any other steps.

[9] Notice of this hearing was served upon the defendant on 6 November 2017. He did not appear in Court today.

Discussion

[10] I am satisfied that Tutama is the registered holder of the tax allotment and that she is the person entitled to immediate possession of it. The defendant has not been given permission by Tutama or anyone else on her behalf to occupy the land. The defendant cannot rely upon the estate holder's permission to be on the land. The estate holder has no right to dispossess an allotment holder other than in a manner provided for by the Land Act (s.32 Land Act). No such circumstances exist. I am also satisfied that demand has been made upon the defendant to vacate the land and he has failed to do so and is a trespasser.

[11] In the statement of claim there was a prayer for damages to be awarded but no loss was proven and no such award is made.

Result

[12] For the reasons given I make the following orders in favour of Tutama Fifita :

[12.2] Pita Lakai is to forthwith vacate the tax allotment of Tutama Fifita at Longomapu, Vava'u known as Ha'ano being 8a 1r 0p and all the land contained in Deed of Grant 182/83.

[12.2] Pita Lakai is to remove from the land all of his possession including any fences and livestock and is to restore the land to its original condition as before his occupation.

[12.3] Tutama Fifita is entitled to costs which are to be fixed by the

Registrar and are to include reasonable travel costs incurred to serve Pita Lakai with the proceedings and the notice of hearing.

O.G. Paulsen

NUKU'ALOFA: 20 November 2017 PRESIDENT