Finau v Koloi [2010] TOCA 12; AC 28 of 2009 (14 July 2010)

IN THE COURT OF APPEAL OF TONGA
LAND JURISDICTION
NUKU’ALOFA REGISTRY APPEAL

NO. AC 28 of 2009

BETWEEN:

SIOSAIA FINAU
Appellant

AND:

‘OFA KI HE LOTU KOLOI
Respondent

Coram: Ford CJ
Burchett J
Salmon J

Counsel: Mr Tu’utafaiva for the Appellant
Ms Tonga for the Respondent

Date of Hearing: 13 July 2010.
Date of Judgment: 14 July 2010.

JUDGMENT OF THE COURT

This is an appeal against orders of 3 July 2009 of Andrew J, sitting in the Land Court, in which his Honour found the Appellant to be in contempt of court for failure to comply with orders made in the Land Court and granted his committal. An application for a stay was refused and the Appellant, "and his family" who were not parties to the proceeding, were "ordered to vacate [an] allotment" by a date one month after the orders. These orders followed the making on 8 September 2008 of earlier orders in the Land Court upholding the Respondent’s claim to the allotment which had been occupied for many years by the Appellant, and ordering the Appellant "and his family" to vacate. Those orders included, in the guise of an order, a notice that "[f]ailure to comply with this [sic] order will amount to contempt of Court". A notice in that form, it need scarcely be said, does not comply with Order 29 Rule 5 (2) (c), even if the Supreme Court Rules could be applicable in a Land Court proceeding for contempt.

Notwithstanding the question whether the Supreme Court Rules in question were applicable, and notwithstanding the inadequacy of the notice just mentioned, the Respondent made in the Land Court its ex parte application for the orders now under appeal in reliance on Order 29 Rule 5, Order 38 of the Supreme Court Rules (although Order 38 Rule 1 makes it quite clear that that Order is not concerned with any power of the Land Court, if it has any, to punish for contempt of Court) and Order 7 Rule 1 (3) of the Land Court Rules.

It became clear, as the Respondent’s argument was developed, that Order 7 Rule 1 of the Land Court Rules was the peg on which the Respondent’s argument hung. That Rule provides:

"(1) An order for possession of land may be enforced by a writ of possession under section 151(2) of the Act.

(2) A writ of possession shall be in Form 2.

(3) Any other order may be enforced in accordance with the Supreme Court Rules".

The Respondent read this Rule as authorizing the enforcement of all Land Court Orders in accordance with the Supreme Court Rules. But any careful reading shows this is not so. What the Rule does is it regulates, by sub-rules (1) and (2) and Form 2, the carrying into effect of the essential jurisdiction of the Land Court – to make orders under s.151 of the Land Act relating to the possession of land. Those orders are to be enforced by the procedure set out in Rule 7 (1) and (2) and Form 2. Then Rule 7 (3) provides for the enforcement of "[a]ny other order" – that is an order other than one for possession of land. The present case relates to the possession of land, and the attempt to side-step the procedures laid down to guide enforcement of such orders in the Land Court cannot be countenanced. The appeal must be allowed with costs and the orders under appeal must be set aside.

There are three further matters. First, it should be pointed out that it was an error for orders in respect of the possession of the land to be directed at the Appellant’s family members, who were not parties to the action. Not only was it an error, it was also quite unnecessary, for R v Wandsworth County Court, ex parte London Borough of Wandsworth [1975] 3 All ER 390 makes it plain that if the correct procedure by writ of possession had been followed then cases going back to the 16th Century in England show that the warrant authorizes the eviction of all those found on the premises.

Secondly, it needs to be borne in mind that the Land Court is a purely statutory court, and it is questionable whether a power to commit for contempt in any manner could be implied into the rather terse statement of its powers in the Land Act.

Thirdly, it should be quite clearly understood by the Appellant that his success in this appeal is likely to prove Pyrrhic unless he takes prompt steps to resolve the very longstanding dispute about this land. He should be in no doubt that his present success is only procedural and that in any further substantive proceeding he would face the problem of the accumulated past decisions. We discussed with counsel the present position which, on any view, is very unfortunate for both parties. Ms Tonga indicated her client would allow some further reasonable time for the Appellant to obtain another allotment and move his house there. It may be, bearing in mind that the long saga of this litigation began with some errors in the Ministry of Land, that the present Minister may be able to assist in the solution by making an alternative allotment available to the Appellant, to which he could move his house. We can only express our strong encouragement to all parties to make the endeavour.

Ford CJ
Burchett J
Salmon J