Lotaki v Church of Tonga [2019] TOLC 9; LA 13 of 2019 (29 October 2019)

BETWEEN : JEFFREY KENNEDY LOTAKI
- Plaintiff

AND : 1. CHURCH OF TONGA
- First Defendant

2. MINISTER OF LANDS
- Second Defendant

BEFORE JUSTICE NIU

Counsel: Mr. William Edwards for plaintiff
Mr. Sione ‘Etika for first defendant
Ms. Leotrina Macomber for second defendant

Date of hearing: On submission only by the plaintiff on 14 October 2019 and
by the first defendant on 21 October 2019, on application by
the first defendant to strike out the statement of claim of the plaintiff

Ruling: 29 October 2019

RULING ON APPLICATION TO STRIKE OUT CLAIM

1. The first defendant has applied to strike out the statement of cliam of the plaintiff upon the ground that it discloses no reasonable cause of action, thereby relying solely on the ground (a) of Rule 8(1) of Order 8 of the Supreme Court Rules, which also applies in this Court by virtue of the Land Court Rules 2007.
   
2. Initially, the application, when filed on 28 August 2019, was based upon 3 grounds, namely,
   • (a) that it discloses no reasonable cause of action,
   • (b) that it is scandalous, frivolous and or vexatious, and
   • (c) that it is an abuse of the process of the Court.

But it was subsequently amended by an Amended Notice of Application to Strike Out filed on 13 September 2019 to be based on only the ground (a), namely, that the statement of claim discloses no reasonable cause of action.

3. The application is stated to be based on Order 8 Rule 8(1) of the Supreme Court Rules, and Rule 8(1) listes 4 grounds, namely, the aboved stated 3 grounds and the ground that the pleading is unclear, or may otherwise prejudice or delay the fair trial of the action.
   
4. But what is to be noted is that Rule 8(1) is jubject to Rule 8(2) and that rule provides that no evidence shall be heard on an application under paragraph (1)(a), namely, the ground that the pleading discloses no reasonable cause of action or defence.
   

5. So that, as the present application of the first defendant is now only based on that ground, no evidence is allowed to be heard or referred to in support of the application. The application must be based and argued only upon what the pleading says. And in considering the application, the Court must assume that all the allegations contained in the pleading are true and that they can be proved at the trial to be true. If, after considering those allegations only, the Court considers that the pleaded cause of action or defence has some chance of success, then the Court will not strike out the pleading. If, however, the Court considers that the pleading has no chance of success at all, even if an appropriate amendment can be made to it, it must strike the pleading out.

6. In his statement of claim the plaintiff pleads that his grandfather, Tevita Lotaki held a town allotment at Kolofo’ou, estate of the Crown, and that it was then held by his father, Maka’afa Lotaki, who was the eldest son and heir of Tevita Lotaki. Whilst Makaafa Lotaki held the allotment, he was issued a deed of grant (book 356 folio 14) of the allotment. (Paragraphs 4 &5 of the Statement of Claim). On 9 Novemer 2017, Maka’afa Lotaki died and the plaintiff claimed the allotment as heir within 12 months of his death. (Paragraphs 6 and 7). He says that the Minister of Lands (second defendant) instead of confirming and transferring the deed of grant (book 356 folio 14) of his father with all the land contained therein to him, the Minister gave him a new deed of grant (book 454 folio 41) with less land than that which his father had held. He says that the lands which
   

had been removed from his father’s deed of grant had been unlawfully granted by the Minister to two younger brothers of his father, namely Lisione Lotaki and Daunibau Lotaki, and that they have each surrendered those lands and the Minister has granted

them to the Church of Tonga (the first defendant) by way of leases, unlawfully, because nether his father, Makaafa Lotaki, nor him, the plaintiff, knew of or consented to those actions in respect of those lands of the town allotment. (Paragraph 8 to 15). He accordingly prays for orders that the leases of the first defendant be cancelled and that the said lands be re registered as lands of the town allotment of the plaintiff.

7. If those allegations of the plaintiff are true, and I have to accept for presents purposes that they are true, I have to say that the statement of claim of the plaintiff does have all the chances of success, not just some chance of success because the laws and the provisions of the Land Act do not give the Minister any authority to do as the plaintiff has alleged that he has done.
   
8. Accordingly, I have to find that the statement of claim of the plaintiff does disclose a reasonable cause of action and I order that the application is dismissed, but that costs thereof be costs in the cause.
   
9. I direct that counsel, including counsel for the second defendant, attend in Chambers at 9:00am Wednesday 30 October 2019 to set a trial date for this case.
   

L. M. Niu
NUKU’AlOFA: 29 OCTOBER 2019 J U D G E