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Maamakalafi v Finau [2004] TOCA 9; CA 16 2003 (30 July 2004)

IN THE COURT OF APPEAL OF TONGA
NUKU’ALOFA REGISTRY

NO. AC. 16/2003

BETWEEN:

SAMIU MAAMAKALAFI and
TANGIMAUSIA MAAMAKALAFI
Appellants

AND

KAITU’U-‘I-PANGAI FINAU
Respondent

Coram: Burchett J
Tompkins J
Salmon J

Counsel: Ms Tonga for the Appellants
Mr. Fakahua for the Respondent

Date of Hearing: 27 July 2004
Date of Judgment: 30 July 2004

JUDGMENT OF THE COURT

[1] This is an appeal from a decision of the Land Court as to who is entitled to a particular town allotment disputed between the First Appellant and the Respondent. The town allotment is one of two in the village of Fotua on the island of Foa in Ha’apai. Many years ago, each of these two allotments had a name bestowed on it, by which it was identified, and those names found their way into official land registrations that did not otherwise describe the allotments registered. That required the Land Court to decide which of the two allotments had borne the name “Lolopua” and which the name “Heilala”. The same question has now been taken to this Court on appeal.

[2] The Respondent and the First Appellant (whose wife is the Second Appellant) claimed respectively through the Respondent’s mother, Ma’ata Latu (a former schoolteacher, now aged about 73) and a half-brother of Ma’ata Latu’s mother, Vaima’ali Mo’unga, who is the First Appellant’s father. By reason of the family relationship involved, there was a connection, over the years, between “Heilala” and “Lolopua”, although one was at the edge of the village and the other near its centre, which may have contributed to some confusion arising between them, at least so far as outsiders were concerned, in recent times when the origins of their names may have come to seem obscure. Those origins must have had roots a long time in the past, for the Lands Office records, as far back as 23 February 1928, show the first registered holder of the land then called “Heilala” as Sione Latu, the grandfather of Ma’ata Latu, and the first registered holder of “Lolopua” as Fehoko Sete, her great-grandfather. She was born on 6 February 1931 on the allotment she said she knew as “Heilala” on the edge of the village, which in her childhood had three large Heilala trees growing on it. At the same period, the allotment near the centre of the village had Tongan Pua trees on it, with which the young Ma’ata was familiar because, after her great-grandfather died, her mother took care of his widow and Ma’ata as a child went frequently between the two allotments. Her evidence was that, in those days, her elders often referred to the allotments by name; and she understood the names, “Heilala” and “Lolopua”, had reference to the trees that have been mentioned. “Lolopua” connotes, in Tongan, the meaning “under the Pua tree”.

[3] Ma’ata Latu went to school in Tongatapu at the age of twelve, returning home for school holidays; on leaving school at seventeen, she lived at home for about a year on the allotment she called “Heilala”; and then in 1949 she began working as a schoolteacher in Tongatapu, marrying Laulotu Finau in 1951, of her union with whom the Respondent is the fourth child. After a separation from her husband, she returned early in 1970 to live in Fotua. Her uncle, Sione Fangatua, who had been registered since 20 June 1938 as the holder of “Lolopua” (he was living in 1970 in Tongatapu where he died in December 1973), invited her and her parents to live on the allotment she knew by that name. When they went there, it had the appearance of having been abandoned for some ten years.

[4] According to her account, Ma’ata Latu obtained her uncle’s permission to clear “his land”, referring to the allotment near the centre of the village, and she arranged for that to be done by bulldozer shortly prior to his death. As he was the registered holder of “Lolopua”, this evidence, if accepted, supports the view that “Lolopua” was the allotment near the centre of the village.

[5] After the death of Sione Fangatua, his younger brother Tapua Latu also known as Poutapua Kamelieli, told Ma’ata Latu and her half brother Sione Kulikefu to build Tongan fales on the land, as they did. In December 1975, Ma’ata Latu and Sione Kulikefu had a meeting with the estate holder, the Honourable Tu’ipelehake, at which it was verbally confirmed to them, according to her evidence, that they could continue to live on the land, looking after it, until its eventual survey and subdivision, when they would receive it. Following an exchange of fales between them, at the behest of Tapua Latu, Ma’ata Latu completed in early 1982 the construction of a more substantial timber and iron house, about which she erected a fence and planted trees.

[6] It was towards the end of 1993 that the First Appellant and his father, Vaima’ali Mo’unga, arrived back in Fotua from the United States where they had been living for many years and to where Vaima’ali Mo’unga returned after a couple of years. The First Appellant and later the Second Appellant, as well as Vaima’ali Mo’unga while he was in Fotua, stayed at the allotment, either in Ma’ata Latu’s house or her brother’s fale, he having left for Australia. Without any attempt at an exhaustive recital of the events, it can be said that the sharing of the allotment was far from successful. Ultimately, in 1999, Ma’ata Latu’s house was demolished by the Appellants, her objection being futile to prevent them doing so. There was considerable dispute between the parties about the circumstances under which Ma’ata Latu was effectively evicted and the house was demolished, but no dispute that she was required to vacate and the demolition was carried out.

[7] Notwithstanding what had occurred, Ma’ata Latu’s son, the Respondent, was able on 16 October 2000 to obtain registration as the holder of the subject land, being the part of the allotment near the centre of the village formerly occupied by his mother.