Kelepi v Kelepi [2024] TOSC 22; FD 47 of 2023 (19 April 2024)

IN THE SUPREME COURT OF TONGA
FAMILY JURISDICTION
NUKU’ALOFA REGISTRY

FD 47/2023

SAVOU LISIATE KELEPI

-v-

SOSILINI PELENITA FALASE KELEPI

RULING

BEFORE: THE HONOURABLE COOPER J
Counsel: Miss Afu and Faanunu for the Petitioner
The Respondent Sosilini Falase appeared in person
Date of: 19 April 2024

ORDER OF COOPER J
DATE OF ORDER 19 APRIL 2024

THE COURT ORDERS THAT

1. The Tongan language version of the Act takes precedent.
2. The meaning of ‘oku ne nofo fonua ‘i he Pule’anga ni is mostly closely aligned with the concept of ‘residence’.
3. Mr. Savou Kelepi has remained in New Zealand since 2018 and as such is resident there.
4. He is not a resident in Tonga and therefore cannot bring a divorce Petition before the Supreme Court.
5. Accordingly, his Petition is dismissed.
6. No order as to costs.

REASONS

1. Savou Lisiate Kelepi filed a Petition for divorce 3 March 2023.
2. I have considered the written submissions on behalf of the Petitioner filed 9 April 2024. The matter was listed 15 April 2024 for further submissions, in the event there were none and the Directions of the Court were that a Ruling would be handed down by 0900 hrs 19 April 2024.
3. Those submissions can be summarised in this way.
   1. In search of the Laws of Tonga that also uses the word ‘nofo fonua’ for the Tongan translation, the following laws were found;
      
      • Income Tax Act 2007 is the one that makes the most reference to the Tongan word ‘nofo fonua’. From reading the Income Tax Law, the word ‘nofo fonua’ is referred to as ‘Tongan resident’.
        
      • Special Missions’ Privileges and Immunities Act section 4 refers to ‘nofo fonua’ as ‘permanently resident’.
        
      • Immigration Regulation Cap 10.01.01 section 2(4) ‘nofo fonua’ is translated in the English version of the regulation as ‘a permanently resident in Tonga’.
        
      • Naturalization Regulation Cap 10.02.02 schedule 1, ‘nofo fonua’ is translated in the English version as ‘residential grounds’
        
   2. Further, there is no significant difference between the Tongan language version of the Act and the English language version.
   3. If there is a difference, the Petitioner is not a New Zealand resident as he has not a valid New Zealand visa.
      

Discussion

4. Under section 3 Divorce Act (the Act) to apply for a divorce to be granted the Petitioner must be “domiciled” in the Kingdom of Tonga.
5. In the Tongan language version of the Act

“’Oku ngofua ki ha husepaniti pe uaifi ‘a ia ‘oku ne nofo

fonua ‘i he Pule’anga ni ‘i he taimi ‘oku fai ai ‘a e hiki tikite ‘o e hopo vete...”

6. Under section 21 of the Interpretation Act

Where it appears to a court that the Tongan language version of a provision in an Act differs in meaning from the English language version of that same provision —

(a) the court may give the provision its correct meaning and act accordingly if it considers that there has been a simple clerical error or error in translation; or

(b) the court shall treat the Tongan language version of that provision as giving the true meaning of the law if it considers that the difference in meaning goes beyond a simple clerical error or error in translation.

7. In attempting to establish a definition of the word “domiciled” Osborne’s concise law dictionary gives a variety of meanings, though central is this:

To acquire a domicile of choice a person must have a definite determination to abandon the old domicile coupled with an intention to establish a permanent residence in (and actually take up residence in) a new domicil.

8. A person’s “domicil” means, generally speaking, the place where he has his permanent home (Whicker v Hume[1858] EngR 991; , 7 H.L. Cas. 124; A.-G.v Rowe, 31 L.J. Ex. 314, 320).
9. Though, there are a variety of meanings at law.
10. The personal status of the domicil of origin “clings and adheres to the subject of it until an actual change is made by which the personal status of another domicil is acquired” (per Cairns c., Bell v Kennedy, L.R. 1 Sc& D. Apps. 310).
11. “Unless you are able to show, with perfect clearness and satisfaction...” that a new domicil has been acquired, the domicil of origin continues (per Lord Westbury, Ibid; see further per Lord Chelmsford, Udny v Udny, L.R.1 Sc & D. App. 455).
12. The Tongan version “‘oku ne nofo fonua ‘i he Pule’anga ni.” equates more readily with the notion of “residence” and where a person lives and stays.
13. I conclude therefore there is a significant difference between the English language version of the Act and the Tongan version. The Tongan language refers to a concept that is framed in a simpler manner than the English language notion of “domiciled”.
14. The Tongan language effectively refers simply to where one lives and so resides.
15. Therefore, pursuant to section 21 Interpretation Act, I find the Tongan language version gives true meaning to the Act.

Application of the law to the instant case

16. Savou Kelepi lives in New Zealand. He left for New Zealand in 2018.
17. He has remained there beyond the terms of his Visitor’s visa.
18. He has continued to stay there, continued to apply for visas to work there and at the time of his latest Affidavit, sworn 12 March 2024, works there in Construction.
19. At paragraph 17 of that Affidavit he states that he intends to return to Tonga and be with his children. That reflects his stated intention in Section D of the Petition, sworn 27 February 2023.
20. There is no evidence of any booking for a flight or any other form of transport for his return, nor has there been since he filed his Petition.
21. Essentially it is submitted on his behalf, that since he does not have official Residence in New Zealand, he remains domiciled in Tonga.

Conclusion

22. I reject the submissions made on behalf of the Petitioner, as I conclude that the Tongan language version of the Act takes precedence. I find he resides in New Zealand as he lives and works there and has done so for some 5 to 6 years.
23. He states at paragraphs 24 to 25 of his Affidavit, 12 March 2024:

“I am doing my best to legalise my stay in New Zealand prior to my return so I do not lose my employment opportunities in New Zealand that support my children.”

“It is my intention that once I get my visa, I will return to visit my children and return to New Zealand to work. I will then travel back and forth between Tonga and New Zealand as there are many employment opportunities in New Zealand that can benefit my children.”

24. As matters stand and have remained since 2018, his life is solely in New Zealand.
25. For the purposes of the Divorce Act that is where he resides and accordingly, he is not a person who can file for a divorce. His Petition must therefore be dismissed.
26. I make no order as to costs.
    

NUKU’A LOFA	19 APRIL 2024
SUPREME COURT	COOPER J