Vaisima v Vaea [1948] TOLawRp 7; [1923-1962] Tonga LR 64 (4 March 1948)

[1923-1962] Tonga LR 64

HALA VAISIMA

v.

'INOKE VAEA

(Land Court. Richardson J. Vava'u, 4th March, 1948).

Brother — Brother of the half blood — Cap. 27 (1928 Laws) S.75.

The Plaintiff claimed that on the surrender of a town allotment by the son of the holder in accordance with the provisions of S.75 of Cap. 27 he, the Plintiff, as the half brother of the person surrendering was entitled to the allotment.

HELD: That the word "brother" as used in the section does not include a brother from the same mother but a different father. It does include a brother from the same father but a different mother.

Verdict for the Defendant.
Hale Vete appeared for the Plaintiff.
Havili appeared for the Defendant.

RICHARDSON J.: All relevant facts in this case are admitted by both parties and detailed evidence is not therefore necessary. This case hinges upon the interpretation of Section 75 of the Land Act 1927. One Taulua inherited a town allotment from his grandfather and elected under Section 73 of the Land Act 1927 to surrender his existing town allotment known as "Tu'akola" which is the subject of this action.

Plaintiff claims that, on surrender by Taulua, the allotment should devolve on him by virtue of the provisions of Section 75 of Cap 27 as he is the half brother of Taulua by the same mother but a different father. The allotment, which was formerly a large one, has however now been sub-divided by the Deputy Minister of Lands and one portion thereof granted out to Defendant and other portions to other members of his family.

Defendant however maintains that under Section 75 of Cap. 27 Plaintiff is not entitled to have the allotment devolve upon him as he is not a "brother" of Taulua within the meaning of the term as used in that section. Defendant maintains that the word "brother" does not include brothers of the half blood. He further maintains that, as neither Plaintiff nor anyone else was entitled to receive this allotment under Section 75 it reverted to the Crown, being on Crown land, and that the Deputy Minister of Lands was therefore correct in sub-dividing it and granting out portions thereof to any applicant.

I have consulted Veikune as to the meaning under Tongan Law and Custom of the word "brother" as used in Section 75 of Cap 27, and he informs me that it is customary for this term to include brothers of the half blood through the same father and a different mother but not to include brothers of the half blood through the same mother but a different father. This interpretation of Tongan usage of the word I must accept, and I find accordingly that Plaintiff is not a brother of Taulua within the meaning of Section 75 of the Land Act 1927 and that therefore Plaintiff's claim must fail.

I accordingly dismiss Plaintiff's claim and award 2 guineas costs to Defendant.

EDITOR'S NOTE: The defendant appealed. On the 1st June, 1948, the Privy Council (Carew C.J.) dismissed the appeal, and said, the Privy Council will not go so far as to say that in no case would brothers of the half blood through the same mother but a different father be recognized as "brothers" within the meaning of Section 75 of the Land Act.