Citizenship fundamental to Tongan system of land tenure, court told

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Tapu helped repay the bank loan in return for a lease of his town allotment. Photo/Facebook (Pacific Media Assistance Scheme)

It was a fundamental tenet of Tongan land tenure that only Tongan subjects could hold a life interest in any town or tax allotment, the Lands Court was told this week.

The ruling was made in a dispute between a widower and the oldest son of her husband’s first marriage over ownership of land and a house.

The court was told that when Toakase Panuva’s husband Sionatapi died, she claimed and was granted his town and tax allotments as widow under section 80 of the Land Act.

Before his death her husband granted a lease of his town allotment to his oldest son, Tapu. However, the lease was not registered until after Toakase was registered as the holder of the town allotment.

Toakase asked the court to cancel the lease, while Tapu wanted her registrations of the tax and town allotments cancelled on the ground that Toakase was not a Tongan citizen when his father died. He also wanted a declaration that he owned the house on the town allotment.

Toakase was born in Tonga in 1948 and married a Tongan man in the United States in 1974. She became a US citizen in February 1982. She was divorced from  her  first  husband  in 1986.

Sionatapi’s first wife was named Ana. He had a town allotment at Haveluloto registered in 1989 and a tax allotment at Pelehake registered in 1996.

In around 1989 Sionatapi agreed  with his sons Tapu and Semisi to  build a house  on his town allotment. They borrowed the  money  to  build  the  house from the Bank of Tonga and agreed to share the loan payments. Ana died in December 1989.

On June 15, 1991 Sionatapi married Toakase in the United States   and brought her to Tonga  to  live in the house with  his children.   In August that year Tapu married and left the house to live elsewhere with  his wife.

Sionatapi retired in 1992 and in 2000 Toakase went back to the United States for work  until 2009 and sent her husband money.

In 2003, Sionatapi asked Tapu to help repay the bank loan in return for a lease of his town allotment.

In November 2004, Cabinet approved the lease, but it was not registered until 2015.

In 2009 Toakase returned to Tonga and lived with Sionatapi until he died in July 2012. At the date of Sionatapi’s  death she was still an American citizen.

Before making a claim for Sionatapi’s town and tax allotments as his widow, Toakase applied for and regained her Tongan nationality. Sionatapi’s town and tax allotments were registered in  her  name  in 2013.

Having considered previous rulings on the rules surrounding citizenship and land ownership, Judge Paulsen said Toakase was not entitled to claim Sionatapi’s tax or  town  allotment  because she was not  a Tongan subject on the date that he  died, the judge said.

Her registration must therefore be cancelled.

He said it was basic to Tongan land laws that the only people who could hold a lifetime  interest in town and tax allotments were citizens.

“It would be peculiar that a Tongan born male is, as a result of taking foreign citizenship prior to the 2007 amendments to the Nationality Act, deprived of his right to hold a tax  or  town allotment yet a widow who has similarly lost her Tongan nationality retains  that right,” the judge said.

“The Land Act created a unique system of land tenure in Tonga where all land is given by  grant  and not  sold for  money  and life interests  in land are reserved for Tongan people to ensure their welfare. The prevention of alienation of land to foreigners was regarded as a vitally important policy for Tonga’s future. Life interests in land carry cultural and customary obligations  which  non­Tongans cannot be expected and would not perform and thus were  reserved for Tongan subjects  only.”

The judge said he declined to  make a finding  that Tapu  was the owner  of the house or as to  the  validity or otherwise of the  lease.

The main points

  • It was a fundamental tenet of Tongan  land  tenure  that  only  Tongan subjects could hold a life interest in any town or tax allotment, the Lands Court was told this week.
  • The ruling was made in a dispute between a widower and the oldest son of her husband’s first marriage over ownership of land and a house.
  • Judge Paulsen said the widow was not entitled to claim the tax or town  allotment  because she was not  a Tongan subject on the date that he
  • Her registration must therefore be cancelled.

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