Fohe v Mahe [2019] TOLC 12; LA 17 of 2018 (22 November 2019)

IN THE LAND COURT OF TONGA LA 17 of 2018
NUKU’ALOFA REGISTRY

BETWEEN : LORD FOHE

- Plaintiff

AND : 1. VE’ETUTU MAHE

2. SALESI FOHE

3. MELE TANGI

4. ZING WANG CO. LTD

- Defendants

BEFORE HON. JUSTICE NIU

Counsel : Mr. H. Tatila for the plaintiff (respondent)

Mr. C. Edwards for the first defendant (applicant)

Hearing : By written submissions on application to set aside formal proof judgement, by applicant on 24 October 2019 and by respondent on 6 November 2019.

Ruling : 22 November 2019.

RULING ON APPLICATION TO SET ASIDE FORMAL PROOF JUDGEMENT

[1] A formal proof judgement was entered against the applicant (together with the other three defendants) on 9 July 2019 requiring him to vacate the land of the respondent plaintiff. He has applied to set aside that judgement, but I take it, only as far as that judgement concerns him (and not in respect of the other defendants, as no similar application has been made by any of them).

[2] Such application must satisfy me of 3 things:

(a) there was a good reason for the failure to file a defence; and

(b) there is an arguable defence by the applicant to the respondent plaintiff’s claim, and

(c) the respondent plaintiff will not suffer irreparable injury if the judgement is set aside.

Was there a good reason for the failure to file the defence?

[3] The applicant says that the reason why he did not file a defence was because he had been told by the district officer, ‘Alotaisi Takau, who is married to his first cousin, when he was served with the notice to vacate, that he did not need a lawyer and that he should just wait for the court hearing and then go and explain his side to the Judge. He said that that was why he had not filed any defence (after the claim was served on him in August 2018). He said that when he was served with the writ and statement, which he said was in October or November 2018 (but which was in fact on the 7 August 2018) he remembered what the district officer had advised him and so he did not take any step to file a defence.

[4] That advice by the district officer was of course wrong because the defendant applicant should have filed his defence, as was required by the notice in the writ of summons, within 28 days. The applicant should not have relied upon the advice because it was the wrong advice. But he did not know that. He did not know it was wrong. He thought it was the correct advice and so he followed it and did nothing, just as the district officer advised, and to wait for the court case and then go to Court and explain his side to the Judge.

[5] The applicant has sworn on oath that that was why he did not file any defence within the stipulated 28 days. If that is the truth, and I have no reason to doubt that it is, it would explain why no defence was filed. It is the reason why no defence was filed by 4 September 2018, the date when the 28 days expired.

[6] Is it a “good reason”, such as is required by the applicable Rule (Order 14 Rule 4(1) (a))? I would say that it is because it was an honest belief held by the applicant that the advice was correct and that he followed it.

[7] As to not attending in Court and explaining his side to the Judge, if he was honestly following the district officer’s advice, Mr. Tatila, counsel for the respondent, says that that failure indicates unreliability in the applicant’s claim that the district officer’s advice had caused him not to file his defence.

[8] I do not agree that it does. The critical time is the period of 28 days from 7/8/2018 to 4/9/2018. There is no reason to believe that, at that time, he had no intention to come to Court and tell his story. His subsequent failure to appear in Court and tell his side of the story may well have been due to the notice which I had issued to him on 31 October 2018, that he may attend the formal proof hearing on 16 January 2019 but that he would not be entitled to say anything or raise any defence to the claim. I am satisfied there was a good reason for to file the defence in time.

Does the applicant have an arguable defence?

[9] The second thing that the applicant must satisfy me of is that he has an arguable defence to the respondent’s claim. The applicant says on oath in his affidavit in support of his application that the previous holder of the estate, Fohe (Samiu), had agreed to give him the piece of land on which he has built and occupied up to now, and that he had given his customary gifts in appreciation for the piece of land, namely, cash of $1,000, $2,000, $1,000, and $500, in addition to a basket of yams, fish, a birthday cake, 20 yams (kau ‘ufi), and the traditional large pig (puaka toho) to Fohe. He said that Fohe showed him the piece of land and he kept and maintained it. He said he also carried out repairs and painting to Fohe’s house for free. He said that he only started building his house on the land in 2012.

[10] In assessing whether or not the applicant has an arguable defence to the respondent’s claim, I have to accept that the applicant will be able to prove those allegations by oral evidence in Court. Whether or not he can do that after he has been fully cross-examined and after contradictory evidence may be given by the respondent, I do not know, and the truth of his allegations will only then be known. But for present purposes, I have to accept that he can prove them.

[11] Now if his allegations are true, then it would be a fact that he was not and is not a trespasser, as is alleged by the respondent in his claim. He would have been lawfully allowed to occupy this land by the previous estate holder, and the present estate holder may not be allowed to evict him. In the cases of Veikune v To’a [1981-1988] Tonga LR 138 and Matavalea v Uata [1989] Tonga LR 101, two cases which concerned town allotments, the Court held that the subsequent holder could not evict an occupier who had been permitted by the previous holder and who has built upon and occupied the allotment in pursuance of such permission. It may well be that the same principle may be applied in respect of unallocated land of an estate, such as it is in the present case.

[12] I cannot say that that will be the case in the present case because I have not heard the full arguments, let alone the contested evidence relevant thereto, but for present purposes, I am only required to be satisfied that the defence of the applicant is at least arguable. I am therefore satisfied of this second requirement.

Will there be irreparable harm to the respondent?

[13] The last question is whether or not the respondent will suffer irreparable harm or damage if the formal proof judgement is set aside. The applicant says that no such harm would be caused to the respondent if the judgement is set aside, and the respondent has not denied or disputed that. Mr. Tatila simply states in his submissions that that statement is noted. I am therefore satisfied that the setting aside of the judgement will not cause any irreparable injury, that is, harm or damage, and accordingly, I am satisfied of all 3 requirements upon which the judgement may be set aside.

Costs

[14] The costs of an application to set aside a default judgment, which this formal proof judgement in this case is, is normally borne by the applicant defendant, whether or not he is successful in his application. This is because it was not the fault of the respondent that the applicant’s defence was not filed. The applicant should therefore bear it. I do not see any reason why he should not.

Orders

[15] Accordingly, I make the following orders:

(a) The Ruling and the orders which I made in this matter on 9 July 2019 are forthwith set aside.

(b) The applicant first defendant shall file and serve his statement of defence against the claim of the respondent plaintiff by 13 December 2019.

(c) The plaintiff shall file his reply to the defence by 13 January 2020.

(d) This matter will be called in chambers at 9am 15 January 2020 for timetabling.

(e) The applicant first defendant shall pay the costs of the respondent plaintiff in this application, to be taxed if not agreed.

Niu J

NUKU’ALOFA: 22 November 2019. J U D G E