A dispute by two of the sons of the four Wight brothers who had co-leased a property in central Tongatapu, highlighted the need for the Ministry of Lands to review the drafting of such leases and how to deal with them upon the death of co-lessees, President Owen G. Paulsen of the Land Court of Tonga, stressed in a decision on 18 December 2017.

The dispute related to a 50 year lease of 99 acres of land at Liahona in the estate of Lord Lasike that was granted to William F. Payne Wight around the middle of last century and named "Ha'amea". The family farmed and raised cattle on the land.

William F. Payne Wight is the grandfather of Raymond Wight, the Plantiff, and Douglas Wight, the Defendant. The Ministry of Lands is a third party in the case heard before the Land Court of Tonga on 27 and 29 November 2017.

President Owen G. Paulsen ordered Douglas Wight to vacate Ha’amea forthwith, pay Raymond Wight $100 for damages, and also pay Raymond’s costs to be fixed by the Registrar if not agreed upon.

Co-leasees

The late William F. Payne Wight (d.1952) had four sons, William, Charley, Fred and Harry. 

The children of William and his brother Charley (d. 1993) are not involved in the land dispute. The case is brought by one of Harry’s sons, Raymond, against Fred’s only son, Douglas.

On 9 May 1974 William, the son of William F. Payne Wight was granted registered lease No. 2989 of the land formerly leased by his father for a term of 50 years from 15 November 1974 to 14 November 2014. It was registered as lease No. 2984B.

On 12 May 1980 William transferred the lease to Charley, Harry and Fred and it was re-registered as lease No. 2984C.

According to Raymond, William sold his interest in the lease to Harry, Raymond’s father.

Fred died in 1992 and his wife migrated to the USA and remarried. Douglas their son was deported back to Tonga from the USA in 2012. Douglas made a claim for Ha’amea, which Harry rejected and Douglas was required to move away from Ha’amea.

In July 2015, Harry signed what purported to be a Will in which he expressed a desire to leave all of Ha’amea to Raymond. The document states that "Raymond Wight has all the rights to our Wight Brothers properties beginning this date 17 July 2015."

Harry died on 12 April 2016 in the USA.

On 4 August 2017 the Chief justice granted Letter of Administration over the deceased, Harry Fredrick Wight’s lease No. 2984 to Raymond E. Wight.

In February 2017 Raymond commenced an action to evict Douglas from Ha’amea, but withdrew it because he had not applied for Letters of Adminstration.

Raymond was later granted Letters of Administration on 2 August 2017. The only asset in the estate is Harry's interest in the lease.

Lease

The Land Court discussion examined the manner in which the brothers held the lease. "Were the brothers joint tenants, tenants in common or did they hold it in some manner (as Mr Tu'utafaiva [defendant's counsel] contends)?"

Raymond's case had beent that Chaley, Harry and Fred held the lease as joint tenants and that the lease devolved upon Harry by right of survivorship. However, his counsel conceded that the brothers held the lease as tenants in common.

A joint tenancy is created when a lease is registered or transferred to two or more persons simultaneously without any words to show that they take distinct or separate shares. On the death of one tenant his interest in the lease is extinguished and goes to the survivors.

In contrast a tenancy in common exists whenever two or more person hold undivided shares in the same lease yet, unlike a joint tenant, are entitled only to a distinct share of the lease. On his death the co-lessee's share devolves upin his beneficiaries under his will.

President Paulsen said because William had sold his interest in the lease to Harry alone, the acquisition by one joint tenant of a greater share will sever a joint tenancy as it destroys the unity of interest.

Furthermore, the family land had been passed down from the brothers' father to them all and evidence was that the three brothers had their own areas of the land, which at various times they farmed to support their respective families. 

President Paulsen concluded that "the brothers must be regarded as having held the lease as tenants in common with Harry having a one half interest and Charley and Fred each having a one-quarter interest in the lease".

He did not accept the Minister of Land's submission that a registed lease is extinguished upon the death of the last joint tenant.

He found that because Harry's interest in the lease was a one half undivided share "he was entitled to possession of the whole and could enforce such right by action against a trespasser."

"However, and importantly Raymond is not by virtue of having been granted Letters of Administration the beneficial owner of Harry's interest. He holds Harry's interest in the lease as a trustee to administer and distribute it in accordance it the Probate Act. (section 16 and Schedule1). It does not appear to me that Raymond understands this and he should note that he may be subject to the supervision of the Supreme Court in this regard (section 15 Probate Act)."

"Douglas claims that he has an interest in the lease as Fred's heir. He does not have any such interest. Upon the death of both Fred and Charley their personal property, which included their interests in the lease, vested in the Supreme Court until such time as administration was granted. No administration has been granted. The proceeds of their estates are the property of the Crown and to be paid into the general revenue." This is subject to the Minister's power to instruct the Supreme Court to grant Letters of Administration 'to any person entitled to such grant or to any person illegitimately descended from the deceased (section 12 of the Probate Act). Douglas has made no such application."

President Paulsen rejected the defendant's submission that Fred's interest in the lease passed directly to Douglas without the need for Letters of Administration to be granted. The letters must be obtained for the purposes of adminstering and distributing the estate of a deceased person.

On 18 December 2017 he ordered Douglas to vacate Ha’amea forthwith, pay Raymond $100 for damages, and also pay Raymond’s costs to be fixed by the Registrar if not agreed.

The plaintiff's counsel was Mrs M. Pale-Palelei and Mr H. Tatila. 

The defendant was represented by Mr S. Tu'utatafaiva and the Ministry of Lands by Mr S. Sisifa SC.