Tonga v Tonga [2005] TOCA 14; AC 10-2004 (21 July 2005)

IN THE COURT OF APPEAL OF TONGA
CIVIL JURISDICTION
NUKU'ALOFA REGISTRY

AC 10/2004

BETWEEN

VILIAMI VA'INGA TONGA
Appellant

AND

SILILA TONGA
Respondent

Coram: Burchett J
Tompkins J
Salmon J

Counsel: K Piukala for appellant
L Niu for respondent

Date of hearing: 11 July 2005
Date of judgment: 21 July 2005

JUDGMENT OF THE COURT

[1.] By an Order of the Supreme Court made on the 14^th April 2004 the marriage of the parties was dissolved. Ward C.J. further ordered that the wife, who was the respondent to the divorce petition, should file affidavits of means and needs.

[2.] The respondent wife appealed against the order dissolving the marriage. In a decision of this Court dated 30 July 2004 that appeal was dismissed.

[3.] In the meantime both parties filed affidavits relating to the financial provision to be made for the wife and on 21^st June 2004 Ward C.J. gave a ruling on that issue.

[4.] He ordered that the respondent should have possession of the town allotment belonging to the appellant. That allotment is rented to a tenant for $900 per month. He further ordered that the name of the landlord in the lease agreement should be altered to that of the respondent and that she should have full rights to the rental and to negotiate any further lease of the premises. She is to be responsible for the maintenance of the property.

[5.] The appellant also has a tax allotment occupied by his sister. The Judge decided that it would be appropriate for the respondent to receive further provision effectively in lieu of rent for this property. However the order he made in that regard was for payment of a further $2,000 per annum by the appellant to the respondent.

The appellant has brought this appeal against those orders.

[6.] There are 6 grounds of appeal and we will deal with each in turn.

[7.] The first ground of appeal is based on S.11 (1)(a) of the Divorce Act, which provides:

11(1) Where the Court has granted a decree nisi on the ground only of 2 years' separation pursuant to section 3(1)(f), the decree shall not be made absolute unless the Court has certified:

(a) that proper financial provision has been made for either party and any children of the family.

For the appellant, Mr Piukala argued that this provision required the Court to certify that proper financial provision be made for both parties whereas provision had only been made for the respondent. We reject this argument. The words used in section 11(1)(a) are "either party" which clearly directs attention to the party in need of financial provision - in this case the respondent.

[8.] The second and sixth grounds of appeal are based on the proposition that the Chief Justice made orders dealing with matrimonial property and that he had no jurisdiction to do so. We do not accept that was the effect of the orders. The orders do not deal with matrimonial property. They only give possession of the town allotment of the appellant to the respondent.

[9] The third ground of appeal challenged the orders made in relation to the appellant's town allotment. At the hearing Mr Piukala abandoned that ground and accepted that the respondent should have possession and control of that allotment. That concession was appropriately made given the grounds of the relief sought in the appellant's petition. There the appellant confirmed that the respondent and the children would have all the rights to the assets, houses and all the incomes from the land of the appellant in the amount of $900 a month.

[10.] The fourth ground challenged the order relating to the $2,000 annual payment. The appellant's concern was the Judge's comment that it was appropriate to charge some rent for the tax allotment. We make no comment on the appropriateness of that remark. The fact is that in the end the order the Judge made was for a payment by the appellant to the respondent. Section 18 of the Divorce act makes it clear that the Judge has that power.

[11.] The fifth ground of appeal asserts that $900 per month is sufficient and proper maintenance and that the Judge should not have made the order for payment of the further $2,000 per annum. The answer to this proposition is that the Judge was exercising a discretion when he fixed the amount of maintenance payable to the respondent. It has not been demonstrated to us that any ground exists to interfere with the exercise of that discretion.

[12.] Accordingly the appeal is dismissed. The appellant is to pay costs. In the absence of agreement the costs will be taxed.

Burchett J
Tompkins J
Salmon J