Latu v Kaho [2018] TOLC 9; LA 13 of 2017 (29 March 2018)

IN THE LAND COURT OF TONGA

NUKU’ALOFA

LA 13 of 2017

BETWEEN : TANAKI LATU

First Plaintiff

NITI LATU

Second Plaintiff

AND : MOSIANA KAHO

First Defendant

LOLANGI KAHO

Second Defendant

BEFORE PRESIDENT PAULSEN AND ASSESSOR

Counsel: Mr. V Mo’ale for the plaintiffs

The defendants in person

Hearing: 28 March 2018
Reasons for Ruling: 29 March 2018

REASONS FOR RULING

[1] The first plaintiff brings an action against the defendants claiming that he is the lawful occupier of land at Fua’amotu and they are trespassers, albeit that he has no registered interest of any sort and pleads that he was given permission to go on the land by a person who has now passed away. Although joined as a party the second plaintiff has no interest in this action other than that he looks after the land for the first plaintiff while the first plaintiff lives overseas. The defendants defend the plaintiffs’ claim and say they have a prior right to possession of the land. They have counterclaimed for damages for trespass.

[2] When the action was commenced the plaintiffs sought an injunction against the defendants to restrain them from entering onto the land. That application was resolved by the defendants providing an undertaking that pending further order of the Court they would not interfere with the plaintiffs’ use of the land. The defendants have honored that undertaking.

[3] This action was set down for trial on 15 January 2018 but it was adjourned because the plaintiffs had not given Mr. Mo’ale instructions. It also appeared that the defendants had not been given notice of the hearing. At a conference on 19 January 2018, which was attended by Mr. Mo’ale for the plaintiffs and the defendants in person, the action was set down again for hearing on 28-29 March 2018.

[4] On 23 March 2018 Mr. Mo’ale filed a memorandum advising that the first plaintiff, who is resident in the United States of America, could not attend the hearing because he has ‘dialysis condition’ and although attempts had been made to get a medical report it had not been provided. The memorandum audaciously advised the Court:

In the absence of our clients with express instruction we cannot move the Court for a hearing and/or withdraw the case. But the Court may vacate the hearing dates.

[5] I immediately issued a minute advising Mr. Mo’ale that there was insufficient evidence to justify the Court granting an adjournment and that a formal application with supporting evidence would need to be filed. No application was filed.

[6] Today Mr. Mo’ale appeared before me and was not in a position to proceed with the hearing. The plaintiffs were not present in Court. Mr. Mo’ale had not received any medical report from the first plaintiff. He advised me that he has met the first plaintiff only once and has never met the second plaintiff at all. He receives his instructions from Mr. Pouono who now lives in New Zealand. Mr. Pouono communicates with the first plaintiff via Facebook. Mr. Mo’ale further advised me that Mr. Pouono knew of the hearing date and that he has spoken to him on a number of occasions and has no reason to believe that the first plaintiff was unaware of the hearing today.

[7] The defendants told me that the second plaintiff lives in Fua’amotu. Mr. Mo’ale was unaware of that and I adjourned until 2pm today so that he could contact the second plaintiff and get instructions. When the action was called again this afternoon Mr. Mo’ale told me that he had made contact with the second plaintiff who said he would come to Court but then later told him he would not come because he was taking his mother for an appointment at the hospital. The defendants tell me that the second plaintiff’s mother has passed away, but in any event he did not come to Court.

[8] Mr. Mo’ale asked me to adjourn the hearing to another date. He did not propose an alternative date for the hearing. The defendants opposed the application. I refuse the application for an adjournment for the following reasons.

[9] First, this is the second time that the plaintiffs have failed to be ready for the hearing. The hearing dates were agreed to by their Counsel. They have shown no intention to pursue this action diligently and it would appear they are happy with the status quo. This is reflected in paragraph 7 of Mr. Mo’ale’s memorandum which states:

The undertaking that was given by the defendants in this proceeding has been working effectively as keeping the peace.

[10] Secondly, the number of hearing days that are now wasted due to failings on the part of Counsel or their clients has reached epidemic proportions. It is now commonplace that Counsel seek adjournments just before the hearing because they are not prepared or their clients do not, for one reason or other, attend the hearing. This is despite the fact that in every case Counsel are consulted before the Court allocates a hearing date. As a result the Court is not getting through its caseload efficiently. I note with some concern that in the last year the Land Court’s clearance rate was less than 100% meaning that it finalised fewer cases than were filed. One reason for this was late adjournments of scheduled hearings. This has the potential to result in a backlog of cases and delays. The Court will henceforth not lightly grant late adjournments. This will come as no surprise to Counsel who appear in this Court as I have warned many times that late adjournments will not be granted unless good reasons exist.

[11] Thirdly, the plaintiffs have provided no evidence to support the only ground upon which an adjournment was sought; that is the first plaintiff’s ill-health. Clearly the second plaintiff is present in Nuku’alofa but choose not to attend.

[12] Fourthly, even if I was prepared to grant an adjournment there is nothing to give me any assurance that the plaintiffs would appear at the next hearing. In all likelihood the granting of an adjournment will achieve nothing but further delays.

[13] Fifthly, I must consider the interests of the defendants. They have honored their undertaking and have appeared today intending to present their case. They are entitled to have the case determined today. They advise me that they would be satisfied if the plaintiffs’ claim is struck out and would not in those circumstances pursue their counterclaim.

[14] I am mindful that the first plaintiff has cattle on the land and will make orders that protect the cattle.

Result

[15] For the reasons I have given above the plaintiffs’ application for an adjournment is refused.

[16] The plaintiffs did not appear today and Mr. Mo’ale was in no position to proceed with the hearing. In those circumstances the plaintiffs’ claim is struck out.

[17] I grant the defendants leave to withdraw their counterclaim.

[18] The defendants are not for a period of 21 days to remove or otherwise interfere with the first plaintiff’s cattle on the land so as to give the plaintiffs’ reasonable time to remove them.

[19] The defendants are entitled to their costs for such time as they were represented by Counsel which costs are to be fixed by the Registrar.

O.G. Paulsen

NUKU’ALOFA: 29 March 2018 PRESIDENT