Tu'itavake v Masila [2002] TOLC 4; L 0013 2002 (3 December 2002)

IN THE LAND COURT OF TONGA
NUKU’ALOFA REGISTRY

NO.L.13/02

BETWEEN:

1. TEVITA TU’ITAVAKE
2. ‘EMALATA PALU
3. MAKISI PALU
Plaintiff

AND:

LAUNGATANGATA MASILA
a.k.a. LOFIA LAUKAU
Defendant

BEFORE THE HON. MR JUSTICE FORD

Assessor: Mr ‘Etuini Finau.

Counsel: Mr Kengike for the plaintiffs and
Mr Piukala for the defendant.

Dates of hearing: 25 November 2002.
Date of judgment: 3 December 2002.

JUDGMENT

On 25 November 2002, which was the date scheduled for the hearing of this Land Court case in 'Eua, none of the plaintiffs turned up at court. Counsel said that the first plaintiff had been unable to obtain a seat on the early morning flight from Tongatapu but he was proposing to travel over later on the ferry. The two other plaintiffs would not be attending. I then proceeded to hear submissions on a strike out application by the defendant and gave an oral decision upholding the application. In this judgment, I set out the reasons for the decision.

The three plaintiffs seek an order restraining the defendant from trespassing on the tax allotment at Kolomaile, 'Eua, known as "Okalani". They also seek damages and compensation for his alleged unlawful use of the land.

The second plaintiff is described in the statement of claim as a widow holding a widow's life interest in the property. The third plaintiff is the second plaintiff's eldest son. The first plaintiff is a 64 -year-old farmer. He claims that, in exchange for money and gifts which he and his wife gave to the widow on 23 June 2001, he received a written authority from her and her son, the third plaintiff, giving him exclusive care, custody and control over the tax allotment for a five-year period from 23 June 2001 to 23 June 2006. For ease of reference, I shall continue to refer in this brief judgment to the second plaintiff as "the widow" and the third plaintiff as "the son".

When the writ and statement of claim were first issued, the plaintiffs sought and obtained an ex parte injunction restraining the defendant from occupying or entering upon the tax allotment until further order of the court. That order remains in force.

Counsel for a party seeking an ex parte injunction is obliged to disclose to the court all relevant facts within his knowledge, even if some of those facts are not favourable to his client's case. In the present proceedings, the full position was not disclosed to the court when application was made for the injunction. If all the relevant facts had been properly disclosed then no interim relief would have been granted by the court. I accept that counsel may have been misled by one or other of his client's but, in accepting instructions, counsel should be diligent in checking out the basic facts of the case before taking the next step and issuing court proceedings.

It became obvious to the court that the plaintiffs' case was in disarray when the defendant filed a strike out application with an affidavit in support from the son dated 11 November 2002 denying that he had given permission for the court proceedings to be issued in his name. The son, who lives Vava'u, went on to depose that he, not his mother, is the lawful holder of the tax allotment "Okalani" and in January 2002 he had given exclusive authority to the defendant to look after it and cultivate it for his own use.

Thus, the situation is that both the first plaintiff and the defendant claim to have authority from the lawful title holder to the exclusive use of the allotment. The first plaintiff says that he has been authorised by both the widow and the son. The defendant says that he has been authorised by the son. The first plaintiff has a written authority from the widow. The defendant has authority, confirmed in affidavit form, from the son.

Although I have not heard evidence, it appears from the various documentation before the court that the widow's late husband, Tevita Palu, passed away on 29 June 1996. Section 80 of the Land Act (CAP.132) provides that, as widow, the second plaintiff was then entitled to a life estate in the allotment which would terminate automatically in the event of her remarriage. The widow remarried on 3 March 2000 and she now lives in Hastings, New Zealand. Her life estate in the allotment terminated, therefore, on 3 March 2000 and she would not have been in a position to enter into an agreement with the first plaintiff on 23 June 2001 giving him five years exclusive use of the allotment.

Moreover, the authority which the first plaintiff said he had from both the widow and her son appears to have been completed by the widow only. It does not bear the son's signature and, of course, he has now filed affidavit evidence confirming that he is the title holder to the allotment and he has given exclusive use of the land in question to the defendant.

It would seem, therefore, that the first plaintiff has been let down by the widow. It may also be the case that the widow has misrepresented the true position to the Minister of Lands. There is a notation on the Deed of Grant signed by the Minister of Lands transferring the allotment to the "widow". The notation is dated 30 July 2002 which is over two years after her remarriage so she was certainly no longer a widow at that stage.

Without hearing evidence from the parties and the Minister's Office, it is not possible to determine authoritatively whether the deception by the widow involves deliberate fraud. The first plaintiff may have other remedies but I am satisfied that the present proceeding cannot be allowed to continue and, in the exercise of the court's discretion it is, therefore, struck out.

The defendant is entitled to costs against the first and second plaintiffs - to be agreed or taxed. The interim injunction is revoked.

NUKU'ALOFA: 3 DECEMBER 2002.

JUDGE