Koloi v Finau [2009] TOLC 4; LA 05 of 2008 (3 July 2009)

IN THE LAND COURT OF TONGA
NUKU’ALOFA REGISTRY

LA 5 of 2008

BETWEEN:

‘OFA KI HE LOTU KOLOI
Plaintiff

AND:

SIOSAIA FINAU
Defendant

BEFORE THE HON. JUSTICE ANDREW

ASSESSOR: GEORGE BLAKE

Counsel: Ms. Tonga for the Plaintiff and Mr. Tu’utafaiva for the Defendant

Date of hearing: 5 May 2009
Date of judgment: 3 July 2009

JUDGMENT

Introduction

In this case the defendant Siosaia Finau was ordered to vacate the allotment at Tofoa s/plan 3403 lot 36 forthwith including his family and possessions on the allotment.

That order was made on the 18th September 2008. There were further orders that the defendant and his family be restrained from entering the plaintiffs Town allotment and that failure to comply with this order would amount to contempt of court. He has failed to comply with any of these orders. The plaintiff now seeks orders:

(i) granting leave to apply for an order of committal against the defendant and

(ii) an order that the defendant he committed to prison.

The defendant has now applied to stay the execution of the judgment dated 18th September 2008. That application is some 8 months out of time.

The plaintiff is the lawful registered holder of this town allotment, it being granted to him on the 19th of January 2007 after there had been a lengthy period of dispute regarding the allotment. On the 19th March 2007 the defendant was ordered to vacate the allotment within 3 months. He continued to ignore and disregard all notices/ demand requiring him and his family to remove their belongings and vacate the allotment and the plaintiff then filed proceedings in LA 5/2008. The writ and statement of claim in this matter were served on the defendant on the 22nd April 2008. The 28 days required for the defendant to file his statement of defence lapsed on the 20th May 2008. The hearing proceeded in 8th September 2008 undefended. The plaintiff together with Mr. Matekitonga from Ministry of Lands adduced evidence in support of the Plaintiffs case. That hearing resulted in the orders of the 18th September 2008 which have already been set out. Again as stated, the defendant ignored all of the Court orders to vacate. The Committal hearing was set down for hearing on the 22 May 2009. Counsel for the defendant stated that the application was not disputed and counsel were to make submissions in writing. Counsel for defence were to make submissions by 29 May 2009. They have just been received now.

I should say here that the dispute over this land has been going on for some 18 years. In 1997 a judgment of the Supreme Court cancelled, the then registration of the land and ordered the Minister of Land, to decide de novo how the land should be allocated. There were conferences and meetings with the former Minster of Lands as well as the current Minister with regards to title to the land. The land was always granted to the plaintiff and the defendant at that time refused all orders to vacate.

The defendant ignored the proceeding, in LA5/2008 when the above orders were issued against him. Again, as stated he ignored all orders to vacate.

Prior to the hearing of the application for contempt the defendant has applied to stay the execution of the judgment of the 18 September 2008. His reason being that he says he has filed another claim against the Plaintiff and also the Minister of Lands but to date no writ or statement of claim has been seen.

ORDER 7 of the Land Court Rules provides for the enforcement of judgments and orders. By virtue of ORDER 7 Rule(1)(3) the rules of the Land Court provide for an order of committal. ORDER 29 Rule 5 of the Supreme Court Rules provides that where any person disobeying a judgment or order not to do an act the judgment or order may be enforced by an order or committal under ORDER 38.

It is not an answer, in these circumstances for the defendant to simply say that he is filing for a further claim. His claim has been litigated and dealt with an nauseum and the defendant will simply not comply with any court order and has been so refusing for a number of years. Judgment ordering him to vacate the land was obtained legitimately.

For all of the reasons I refuse to stay the judgment of the 18th September 2009.

The defendant has deliberately failed to comply with these orders and I am satisfied that in these circumstances this amounts to a contempt of court.

I grant the defendant one more month from todays date ie to the 3rd August 2009 to vacate the land and remove his belongings failure to comply may result in his being imprisoned.

The defendant has made submissions long after the time allocated and when the court could not delay its ruling any longer. I do not think it is invalid to seek the defendants family to vacate the property as well. It is just common sense that they need to vacate as well otherwise the whole order to vacate would be largely ineffectual. Further formal proof of the Plaintiffs claim was heard. Additionally the Plaintiff was entitled to seek an order to vacate and I do not see that his claim should fail because he did not apply for an order for possession of land.

The test for contempt of court is whether there is a real risk of undermining public confidence in the administration of justice. That is the position here where the defendant has simply ignored all orders of the Court for a number of years now.

ORDER

1. The defendant SiosaiA Finau is found to be in contempt of court for failure to comply with the orders of the Court. The application for committal is granted.

2. The defendant’s application to stay the execution of the Judgment of the 18 September 2008 is refused.

3. The defendant and his family is ordered to vacate the allotment by the 3rd August 2009.

4. Further failure to vacate the land will render the defendant liable to imprisonment.

5. Costs are awarded to the Plaintiff as agreed or taxed.

NUKU'ALOFA: 3 July 2009

JUDGE