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Wight v Wight [2018] TOCA 17; AC 3 of 2018 (7 September 2018)

IN THE COURT OF APPEAL OF TONGA
LAND JURISDICTION
NUKU’ALOFA REGISTRY

AC 3 of 2018
[LA 31 of 2017]

BETWEEN : DOUGLAS WIGHT

- Appellant

AND : 1. RAYMOND WIGHT
2. MINISTER OF LANDS

- Respondents

Coram : Handley J

Blanchard J

Hansen J

Counsel : Mr. S. Tu’utafaiva for the Appellant

Mr. H. Tatila for the First Respondent
Mr. S. Sisifa SC for the Second Respondent

Date of Hearing : 4 September 2018

Date of Judgment : 7 September 2018

JUDGMENT OF THE COURT

Introduction

[1] This case involves a dispute about how a registered lease of land known as “Ha’amea”, at Liahona in the estate of Lasike, is to devolve after the death of the last of the three Wight brothers, Charley, Fred and Harry. The lease is for a term of 50 years expiring on 24 November 2024. The area of the land is 99 acres.

The Facts

[2] The original lessee was a fourth brother, William Wight. About two years into the term of William’s lease, on 25 November 1976, he executed an indenture conveying the lease to himself, Charley, Fred and Harry for a consideration of TOP$1,000. Lord President Paulsen, who heard the case in the Land Court and from whose decision this appeal is brought, accepted evidence, which was not disputed, that by arrangement between them each of the brothers had a roughly equal area of Ha’amea for his separate use, although not demarcated by fences. William, Charley and Harry each grew crops on the land and exported fruit and vegetables. They also raised animals. Fred was not involved in the business at this stage as he was living in New Zealand.

[3] In 1970 William and his family moved away from Ha’amea and by indenture dated 12 May 1980 he conveyed his interest in the lease to Charley, Harry and Fred. The consideration was again stated to be TOP$1000 with no indication that the transferees had contributed unequally. However, the Lord President accepted uncontradicted evidence from Raymond Wight, a son of Harry and the respondent to the appeal, that in reality this was a sale of William’s interest in the lease to Harry alone. (That evidence was given by Raymond against his own interest as an heir of the last surviving joint tenant.)

[4] In due course Fred returned to Tonga and built a home and lived on the land with his wife and only child, Douglas, the appellant. (Fred’s house, which under Tongan law had the status of a chattel, is no longer there).