Appeals Court rules claimant has no right to remain on disputed land

'Oku taupotu 'i lalo ha fakamatala faka-Tonga

The Court of Appeal has ordered a claimant to vacate a block of land after issuing judgement in a protracted dispute.

The case involved a dispute about how a registered lease of  99 acres  known as ‘Ha’amea’ at Liahona in the estate of Lasike was to be inherited 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 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 TP$1,000.

Each of the brothers had a roughly  equal  area of Ha’amea for their own use. 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.

In 1970 William and his family moved away from Ha’amea and in 1980 he conveyed his interest in the lease to Charley, Harry and Fred. In an earlier case the Lands Court accepted  evidence from Harry’s son Raymond Wight that this was really a sale of William’s  interest in the lease to Harry alone.

In its report on the case, the Court of Appeal said Fred returned to Tonga and built a home and lived on the land with his wife and only child, Douglas. Fred died in 1992. His widow moved with Douglas to the United States where she remarried. No application was made for letters of administration of Fred’s  estate.

Charley died in the United States in 1993 or 1994. Again, no application for  letters  of  administration  of  his  estate  has  been  made.

Harry survived Fred and Charley and continued to live on and farm Ha’amea. Raymond has run cattle on the land since 1995 and paid the rent and other outgoings of Ha’amea. In 2012 Douglas was deported from the United States and, with Harry’s permission, lived for a time in a building on the land.

Douglas raised a claim to Ha’amea that Harry did not accept. Douglas was obliged to move off the property. He moved back in 2014 when Harry went to the United States for medical treatment. In October 2015 Raymond allowed Douglas to move into Harry’s house.  Harry died on 12 April 2016 in the United States.

A dispute then arose between Douglas and Raymond when Douglas cut down some trees and slaughtered some of Raymond’s cattle on the land. Douglas also disconnected the water lines necessary for the maintenance of Raymond’s cattle.

Raymond applied for letters of administration of Harry’s estate which were granted by the Supreme Court on August 2, 2017. The only asset of the estate is said to be Harry’s interest in the lease.

Raymond regarded Douglas as a trespasser and asked the Land Court for an order for possession and damages. He also lodged the letters of administration with the Minister of Lands together with an indenture conveying the lease to himself. Both documents were registered.

The Land Court ruled that when Fred and Charley  died Harry became the sole owner at law and has been succeeded at law by Raymond as his administrator. The court ruled that this Raymond the right to bring an action against a trespasser for possession of the land. It rejected a claim by Douglas that as Fred’s heir he had an interest in the lease and the right to be in possession.

The Appeals Court said that as far as was known, Charley and Fred had not made wills. No persons had been appointed to carry out the duties of an administrator of their intestate estates. Until that was done,  none of the heirs had any beneficial interest in any of their assets.

This meant Douglas had no right to remain on the land when requested to leave by Raymond.

If administrators could  be appointed  in the  estates  of  Charley  and Fred and the heirs identified it would be possible to approach the Minister seeking to have the register corrected to reflect that one quarter interests in the lease were owned by the heirs of Charley and Fred in common with the heirs of Harry’s estate.

“For these reasons we confirm that Raymond is entitled to have Douglas removed from the land and excluded unless and until Douglas establishes his right as an heir of Fred under the Probate Act,” the Court of Appeal ruled.

“Douglas Wight must vacate Ha’amea within 28 days of the date of delivery of this judgment.”

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