Home | Databases | WorldLII | Search | Feedback Tonga Law Reports

Pohahau v Kinikini [1986] TongaLawRp 1; [1981-1988] Tonga LR 116 (21 April 1986)

[1981-1988] Tonga LR 116

KINGDOM OF TONGA

PRIVY COUNCIL

Appeal No 4/1985

POHAHAU AND TAUELANGI

-v-

KINIKINI

21 April 1986

Appeal - assessment of credibility of witnesses by court appealed from not to be disturbed by appellate court.

Appeal - discretion of court appealed from - not to be reversed unless exercised on wrong principles or on basis of irrelevant considerations or omission of relevant considerations.

Divorce - discretion of court to refuse decree - not to be reversed on appealed unless exercised on wrong principles.

The parties were married in 1976, but in 1985 the husband petitioned for divorce on ground of wife's adultery. A decree for divorce was granted by the Supreme Court even although there had been delay on the part of the husband in presenting the petition, and there had also been desertion and adultery by him. The wife appealed to the Privy Council.

HELD:

Affirming the decision of the Supreme Court.

(1) The assessment by the Supreme Court of the credibility of the witnesses could not be held to be wrong.

(2) The exercise of discretion by the Supreme Court had not been shown to have been made on wrong principles, or on the basis of irrelevant considerations or omission of relevant considerations.

Privy Council

JUDGMENT

This is an appeal against a decision of Harwood J. in the Supreme Court on a petition by the Respondent for divorce on the ground of the Appellant’s adultery with one Likutau Tauelangi, during the month of April 1983 at Kahoua.

The parties were married in 1976 in New Zealand and have one child - a six year old girl. The marriage was happy at first but by 1983 had deteriorated to the extent that the husband left home. There had been talk of divorce at that time but the wife would not agree. The wife issued proceedings for maintenance on the grounds of her husband's desertion and he was ordered to pay maintenance on the 7th March 1983. On the 11 March 1985, the husband filed the present petition alleging adultery in April 1983. In the lower Court, the wife complained that there had been unreasonable delay in the issue the proceedings, but Harwood J. accepted that there were good grounds for the delay and that it was excusable. The evidence adultery was this:-

1. The husband said that in April 1983, which was after the separation, he had seen his wife and the correspondent Likutau "kissing and talking". This had occurred at night, and in what had been the matrimonial home. Some time later he saw the same thing happening and later he approached Likutau about it. At first Likutau denied adultery but then admitted.