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Filimoehala v Filimoehala [2016] TOCA 17; AC 9 of 2016 (14 September 2016)

IN THE COURT OF APPEAL OF TONGA
LAND JURISDICTION AC 9 of 2016
NUKU’ALOFA REGISTRY [LA 28 of 2015]
_____________________________________________________

BETWEEN : PEAUAFI FILIMOEHALA

- Appellant

AND : 1. PENI TOLOA FILIMOEHALA

2. MINISTER OF LANDS

- Respondents

Coram : Moore J

Blanchard J

Hansen J

Tupou J

Counsel : Mr. S. Fonua for the Appellant

Mr. S. Tuutafaiva for the First Respondent

Mr. ‘A. Kefu SC for Second Respondent

Date of Hearing : 6 September 2016

Date of Judgment : 14 September 2016

JUDGMENT OF THE COURT

[1] This is an appeal against a judgment of the President of the Land Court Paulsen C.J. in LA28/2015 on 14 June 2016 determining that the successor to a registered town allotment known as “Kape” in Ma’ufanga previously held by Penisimani Filimoehala is the respondent, Peni Toloa Filimoehala, who is the son of the eldest son of his first marriage, and not the appellant, Peauafi Filimoehala, who is the first born son of his second marriage.

[2] Additionally an appeal is brought against a judgment of the President on the same day between the same parties involving the same town allotment in LA9/2016 that as a result of his ruling in LA28/2015, the appellant must vacate the allotment within 1 month.

Facts

[3] Penisimani Filimoehala married Salote in 1931. They had six children the eldest being Toloa who was born in 1932. Salote died in 1942. Penisimani married Vasitai in 1943 and they had 9 children, the eldest born in 1944, Peauafi Filimoehala, who is the Appellant.

[4] Toloa, the eldest son of the first marriage of Penisimani, married Mele and their eldest legitimate son is the respondent Peni Toloa Filimoehala who was born in 1953.

[5] In 1952 Penisimani applied for a town allotment in Ma’ufanga. This was approved by the Minister of Lands but for unknown reason was not registered until 1982 it is known as “Kape.”

[6] In 1988 Penisimani died and his second wife Vasitai was given the life estate interest in “Kape” as the widow.

[7] Toloa died in 2007 and was survived by his son, the respondent. Toloa predeceased the widow Vasitai, who died on 6 July 2010.

[8] On 15 April 2011 the respondent applied for and was registered as the lawful successor to “Kape”.