Halatanu v Lafo'ou [2025] TOLC 7; LA 2 of 2024 (16 July 2025)

IN THE LAND COURT OF TONGA
NUKU’ALOFA REGISTRY

LA 2 of 2024

BETWEEN:
NINA LUSEANE HENRIETTA MOALA HALATANU
- Plaintiff

AND:
1. FE’OFA’AKI MOALA LAFO’OU
2. MELE METUI HALATANU
- Defendants

JUDGMENT

BEFORE: HON. JUSTICE TUPOU KC
HON. LAND ASSESSOR FUIVA KAVALIKU
Appearances: Mrs. F. Vaihu for the Plaintiff
The Defendants in person
Date: 16 July, 2025

The Claim

1. The Plaintiff is the widow of the late Talalima Moala Halatanu (referred to hereafter as “Talalima”) of Nukuleka, Tongatapu.
2. Talalima previously registered and held a town allotment situated at Nukuleka, Tongatapu.
3. Talalima died on 22 August, 2023 and the Plaintiff claimed the subject town allotment as his widow.
4. The First and Second Defendant occupy the subject town allotment. The Plaintiff seeks orders for their eviction.

The Defence

5. The First Defendant is Talalima’s first wife. The Second Defendant is the wife of Talalima and the First Defendant’s eldest son and Talalima’s heir.
6. The Defendants via counsel, Ms. Tonga, admit they occupy the Allotment and challenge their eviction on the following grounds:
   1. they have no knowledge of the Plaintiff’s claim and registration of the subject town allotment,
   2. the Plaintiff did not participate in the loan repayments relating to the house on the allotment, and
   100. they are on the allotment to look after their children.

7. The First Defendant pleaded the following further grounds of defence:

1. that she had lived on the Allotment since 2011 without Talalima taking any steps to evict her and the Plaintiff whose interest and claim is through Talalima is time barred,
2. that through Talalima’s omission to evict her, the Plaintiff by his conduct is estopped from evicting her,

100. that the children of the marriage have a right to be on the Allotment and that right extends to her,

4. she spent money on maintenance on the house and an extension in 2022,
5. this court has no jurisdiction to evict her under this suit,
6. the Plaintiff is not a legal citizen of the US and will not return to Tonga, but has damaged the peace and security of the children of the marriage through this action,
7. the Allotment is big enough to accommodate the Plaintiff if she wished to build a house on it.

The Facts
8. The following are the facts as I have found them proved.

9. Talalima married the First Defendant on 24 April, 1991.
10. Talalima is the registered holder of a town allotment known as “Manatu ‘Ofa” consisting of 1403m², situated at Nukuleka, Tongatapu, best described under Deed of Grant Book 220 folio 37 and registered on 15 June, 1993 (referred to hereafter as “the Allotment”). They built a home and raised their children on the Allotment. There were 6 children of that marriage, of whom Malakai Halatanu is the eldest.
11. Talalima left their home for the United States of America in 2011 and the First Defendant filed for divorce. Their marriage was dissolved on 9 September, 2014. The First Defendant continued to reside with the children of the marriage on the Allotment.
12. Malakai is married to the Second Defendant and they too lived on the Allotment with their children on the Allotment.
13. Talalima married the Plaintiff on 21 August, 2015 in the United States of America and had resided there since. On or around 2018 - 2020, the Plaintiff was able to make contact with some of her step children and eventually the First Defendant. The Plaintiff then started to help them.
14. Talalima died on 22 August, 2023. The Plaintiff claimed her life estate as Talalima’s widow over the town allotment “Manatu’ofa” on 15 December, 2023 which was approved by the Minister of Lands and registered on 5 February, 2024.
15. All seemed well until the Plaintiff gained rights over the Allotment. It arose from posts on social media and no one gave any detailed evidence about it, but it obviously damaged the harmonious relationship that existed before it.
16. The Plaintiff said she will not forgive the Defendants and wants both of them evicted from her Allotment.
17. The First Defendant gave evidence the essence of which was concern for her children who are not able to look after themselves and a son who suffers from heart problems. She called her daughter ‘Enilose Halatanu, Sosaia Halatanu and Malakai Halatanu who all expressed their wish to have their mother, the First Defendant remain with them. They all told the court that they preferred to be with their mother.
18. Malakai said that he would not be able to look after his family if his mother left. However, in answering questions from the bench, it was clear he had been employed with a company “Vaitohi” but quit because he was fed up with waking up early in the mornings. Then he was employed with construction of the foreshore on the eastern side of Tongatapu earning up to $100 a day. On that account, he is well able to look after himself and his family if he so wished.
19. The Second Defendant said that if this court were to decide that the Plaintiff held the power over the Allotment then she had nothing further to say. She said that she has a home to go to and she and her mother in law would be fine. It was their children she was worried about.

Discussion

20. Section 80 of the Land Act provides:

“On the death of the lawful male holder of any tax or town allotment his widow shall be entitled to a life estate in such allotment which estate shall terminate on her remarriage or upon proof in legal proceedings (as provided by section 81) of her having committed fornication or adultery.”

21. The Plaintiff had made her claim and now has an unfettered right over the Allotment.
22. I heard nothing in the Defendants’ evidence to impugn the Plaintiff’s title and interests on the Allotment. There was also no indication that the further defences pleaded were being pursued.
23. On the whole the Defendants’ challenge was an unfortunate misconception of their own as well as their children’s actual legal interests or lack thereof in respect of the Allotment after Talalima’s untimely passing.
24. Clearly, a time will come when Malakai, as heir, will claim the Allotment, but for the time being the Plaintiff is correct that no other right exceeds hers over it.
25. The First Defendant confirmed that there were no orders in relation to the house at the time of her divorce and that no letters of administration had been obtained by anyone in terms of Talalima’s estate.
26. In relation to the house, the Plaintiff inherits it under section 16 of the Probate Act that states:

“The widow shall inherit the dwelling house on the town allotment (and if more than one the Court shall decide which one shall go to the widow), the growing crops, pigs and poultry and ngatu whether the deceased left a will or not but the rest of the property of an intestate shall be divisible according to Schedule 1 hereto.”

27. The First Defendant’s claim for maintenance and an extension were not sufficiently particularized leaving the court in no position to give a ruling on it. However, should it be considered of significance and outside of fair wear and tear and maintenance for her family’s own comfort, the First Defendant may wish discuss such costs with the Plaintiff and in default of reaching a satisfactory arrangement, is at liberty to bring the matter back before this court.
    

Result

28. The Plaintiff’s claim is successful.
29. The First and Second Defendant, together with their agents and representatives are to forthwith vacate the Plaintiff’s Allotment.
30. The Plaintiff is entitled to her costs to be fixed by the Registrar if not agreed.
    

P. Tupou KC
J U D G E

Nuku’alofa:16 July, 2025