Finau v Kupu [2018] TOLC 18; LA 37 of 2017 (23 October 2018)

IN THE LAND COURT OF TONGA

NUKU’ALOFA REGISTRY

LA 37 of 2017

BETWEEN: HASATA PIULEINI FINAU aka

HASATA PIULEINI FINAU SUNIA

Plaintiff

AND : SIAOSI KUPU

First Defendant

VAIOSINA KUPU

Second Defendant

SIONE LANGI SUNIA

Third Defendant

MINISTER OF LANDS

Third Party

BEFORE THE PRESIDENT PAULSEN AND ASSESSOR

Counsel: Mr. W.C. Edwards Snr SC for the plaintiff (granted leave to withdraw)

Mr S. Fonua for the first, second and third defendants

Mr. ‘A. Kefu SC for the third party

Date of Hearing: 22 October 2018

Date of Ruling: 23 October 2018

JUDGMENT

[1] Sunia Finau Sunia (Sunia) was the registered holder of a town allotment and a tax allotment at Ha’atafu. Sunia died on 15 July 2017 and the plaintiff (Hasata) applied for and was granted Sunia’s tax and town allotments as his widow.

[2] This action began life as a claim by Hasata for possession of the allotments from the first defendant (Siaosi). Siaosi defended the claim on the basis that Hasata’s registrations were invalid because she was not the lawful widow of Sunia. The lawful widow was, he says, the second defendant, Vaiosina Kupu (Vaiosina). Vaiosina and third defendant along with the Minister were joined as parties.

[3] Vaiosina has filed a counterclaim against Hasata claiming to be Sunia’s lawful widow and seeking orders directing the Minister of Lands to cancel Hasata’s registrations as unlawful and to register her as the holder of the allotments.

The hearing

[4] The case was set down for hearing yesterday. At the commencement of the hearing, Mr. Edwards advised me that Hasata no longer wished to pursue her claim and that his instructions had been withdrawn. He produced two documents, including a letter that I understand has been signed by Hasata, to that effect. Mr. Edwards also advised me that Hasata does not now offer any opposition to Vaiosina’s counterclaim but he could not go so far as to say that she consents to it. I granted Mr. Edwards leave to withdraw as Hasata’s Counsel.

[5] I then heard evidence from Vaiosina and Siaosi, who were both subject to cross-examination by Mr. Kefu for the Minister.

The facts

[6] Sunia Finau Sunia (Sunia) was the registered holder of a town allotment at Ha’atafu known as Konga ‘o Suva (Deed of Grant 232/6) and a tax allotment known as Pule’ia (Deed of Grant 258/53).

[7] Sunia married Vaiosina at Hawai’i on 18 April 1983. They had two legitimate children, namely Selaima born 1985 and Mohokoi born 1987.

[8] Sunia and Vaiosina separated in 1989 but they were never divorced. Vaiosina has not purported to remarry.

[9] On or around 17 April 1997 Sunia went through a ceremony of marriage with Hasata at Los Angeles, California.

[10] Sunia died on 15 July 2017 at Long Beach, California.

[11] On 14 August 2017, Hasata submitted her claim for Sunia’s tax and town allotments as widow. On 21 August 2017, the Minister approved her claims. She was registered as the holder of Sunia’s town and tax allotments on 28 August 2017.

[12] Shortly after Sunia’s death, Vaiosina contacted Siaosi, who has lived on Sunia’s town allotment since 1994 and is married to Sunia’s sister. She asked him to go to the Ministry of Lands about claiming the allotments. It is not necessary for me to set out the steps that Siaosi then took to lodge a claim on Vaiosina’s behalf. It is sufficient to note that it is now accepted by the Minister that Siaosi lodged a valid claim for the allotments on behalf of Vaiosina in September 2017 and within 12 months of Sunia’s death.

Discussion

[13] Upon Sunia’s death his widow was entitled to claim his tax and town allotments (s 80 Land Act). There can be only one widow. Sunia was not free to marry Hasata under Tongan or Californian law unless and until his marriage to Vaiosina was dissolved. The marriage was not dissolved. It follows that Hasata was never legally married to Sunia and did not have any rights under the Land Act to claim Sunia’s town and tax allotments as widow upon his death. Her registrations were accordingly unlawful.

[14] At the date of Sunia’s death Vaiosina was still lawfully married to him, albeit that they had separated. She was legally his widow and entitled under the Land Act to claim his tax and town allotments.

[15] I am satisfied (indeed it is now conceded by the Minister) that Vaiosina lodged her claim for the allotments within 12 months of Sunia’s death in compliance with s. 87 of the Land Act. She is therefore entitled to be registered as the holder of the allotments.

Result

[16] For the reasons set out above, I make the following orders:

(a) Hasata’s claim is dismissed and Vaiosina’s counterclaim is allowed.

(b) Hasata’s registrations as the holder of the town allotment at Ha’atafu known as Konga ‘o Suva (Deed of Grant 232/6) and the tax allotment known as Pule’ia (Deed of Grant 258/53) formerly held by Sunia Finau Sunia are unlawful and the Minister is to forthwith cancel the said registrations.

(c) The Minister is to register Vaiosina as the holder of the tax and town allotments formerly held by Sunia as widow under s. 80 of the Land Act.

(e) The defendants are entitled to their costs against Hasata to be fixed by the Registrar.

O. G. Paulsen
NUKU’ALOFA: 23 OCTOBER 2018. P R E S I D E N T