Tangataevaha v Lutui [2021] TOLC 5; LA 1 of 2021 (8 April 2021)

IN THE LAND COURT OF TONGA

NUKU’ALOFA REGISTRY

LA 1 of 2021

BETWEEN : CHRISTOPHER FASI TANGATAEVAHA

- Plaintiff

AND : SIUENI LUTUI

- Defendant

BEFORE HON. JUSTICE NIU AND ASSESSOR TOUMO’UA

Counsel : Mr V. Latu for Mr. C. Edwards for the plaintiff

Formal proof hearing : 6 April 2021

Ruling : 8 April 2021

RULING

No defence filed

[1] The claim of the plaintiff was filed in Court on 18 January 2021 and was served upon the defendant, personally, by police officer, Siaosi ‘Apolo Lufe, at 4:56pm, 25 January 2021, together with a direction notice and a writ of summons which required that the defendant file his defence to the claim within 28 days of that service. He signed an acknowledgement of that service at the same time.

[2] No defence was filed by the defendant within those 28 days.

[3] On 8 March 2021, plaintiff counsel asked for formal proof of the plaintiff’s claim.

[4] On 24 March 2021 (after returning from the Vava’u circuit) I directed that the formal proof hearing of the plaintiff’s claim be held in this Court at 10:00 am 6 April 2021, and notice of that hearing was served upon the defendant’s wife at his home at 10:26 am 30 March 2021.

The evidence

[5] The plaintiff gave sworn evidence in Court and produced and read a brief of his evidence and documents in support of his claim.

[6] The defendant was the holder of a tax allotment at Mataika, in the estate of the Crown, in Nuku’alofa. He subdivided it in the 1990s and surrendered the various lots to the Crown and they were granted to various people as their town allotments. He kept one lot for himself and built his dwelling house on it, which he rented out and lived in another house at the rear of the lot himself with his wife.

[7] He leased the adjoining lot to the plaintiff’s father, Tevita Manu, in 1992, and although he did not build on it, Tevita Manu kept it cut and cleaned and paid the annual rent of the lease.

[8] In the late 2000s, Tevita Manu (who has now died) and the defendant agreed and upon payment by Tevita Manu of a sum of money to the defendant, the amount of which the plaintiff does not know, the defendant signed a letter in which he agreed to the cancellation of the lease and to the surrender of the lot to the Crown in order that it be granted to the plaintiff as his town allotment.

[9] In pursuance of that agreement, the money was paid to the defendant, the defendant signed the letter and the lease was accordingly cancelled. It was then surrendered and the allotment was subsequently granted by the Minister of Lands to the plaintiff as his town allotment by deed of grant, book 391 folio 77, on 5 March 2009. The plaintiff was then 23 years of age. He has continued the upkeep and maintenance, that is, the cutting and cleaning of the allotment, from then up to now.

[10] The plaintiff got married and he lived with his wife at his wife’s parents home since 2007. They now have 3 children and they have been saving to build their house on the allotment. By July 2020, they had saved their deposit of $5,000 for their loan of $40,000 to build their dwellinghouse on the allotment.

[11] But they found that the defendant had built a pig pen on the allotment it appeared since June 2020. The posts were of sialemohemohe and the walls were of corrugated iron sheets and there were 4 sows and their piglets in it. He went and saw the defendant and the defendant told him that he was disputing the right of the plaintiff to the allotment. The plaintiff went to his counsel and counsel wrote to the defendant on the same day, 6 July 2020 and attached a copy of the deed of grant and of a letter from the Land Office on the same day confirming that deed of grant, and informed him that the plaintiff would proceed with his clearing of the allotment for his construction and directed the defendant to remove his pig pen from it.

[12] Sometimes later, the plaintiff went and found that the pen was empty and he removed the corrugated iron sheets and placed them at the frontage of the defendant’s allotment.

[13] On 21 October 2020, the plaintiff found that another pig pen was built on the allotment again, but there were no pigs in it. He went to see the defendant and a lady there told him that counsel, Mr Tu’utafaiva, had advised that the pig pen be continued to be kept on the allotment. The plaintiff again saw his counsel and counsel wrote to the defendant, and copied to Mr Tu’utafaiva and the Officer in Charge of the Nuku’alofa police station, that the plaintiff would remove the pig pen and that the defendant would be charged with trespass if he interfered. The defendant did not reply to that letter or remove his pig pen.

[14] On 31 October 2020, the plaintiff went with workmen and an excavator to clear the land for his construction. But the defendant chased them off with a machete and threatened that he would cut them up so that their intestines would be all over the place. He also called to his wife to bring him his gun to shoot them.

[15] The plaintiff called the police and the police came, but they said, after looking at and confirming the deed of grant of the plaintiff, that the matter was a civil matter and to be sorted out in Court. The plaintiff and the workmen with the excavator then left.

Damages

[16] The plaintiff has brought this action against the defendant for trespass and claims possession of the town allotment and damages for the trespass. He claims that the annual rental value of the allotment is $6,000 and that because he has been deprived of the allotment for 6 months prior to filing his claim in Court, he is entitled to half of that $6,000, namely, $3,000 as general damages.

[17] He also claims exemplary damages of $2,000, in addition, for the same period of 6 months in view of the persistence and vagrant threats given by the defendant against the plaintiff and his workmen, to keep his pig pen on the allotment.

[18] In addition, he claims general damages of $500 and exemplary damages of $333.33 per month from 7 January 2021 until the defendant vacates the allotment and removes his pig pen from it.

[19] I asked the plaintiff how he had come by those figures which he was claiming and what evidence could he give concerning them, and both he and counsel, Mr Latu, could not give any explanation or evidence concerning them. Counsel asked that the matter be left to the Court to decide.

[20] In respect of vacant land of a town allotment, such as the plaintiff had on 6 July 2020, there cannot be any lawful income which he could have received from it because he had not lawfully leased it or granted its use to someone else with the written consent of the Minister of Lands (as is provided in S.13 of the Land Act). Had it been so let, there would have been some set or ascertained income that was lost by the action of the defendant but there wasn’t.

[21] He was however deprived of the lawful use of his allotment by the deliberate and unlawful act of the defendant, that is, to build his dwellinghouse thereon and to occupy it with his family. Had the plaintiff been able to do that, he and his wife would have enjoyed freedom which they did not and they do not enjoy whilst they are living with the wife’s parents at her parents’ home. This Court can properly assess damages for such loss of freedom and convenience.

[22] What the defendant has committed is trespass. He has physically and deliberately trespassed on the plaintiff’s town allotment and has built his pig pen on it and put his pigs in that pen, not once but twice, even up to now. Such trespass is actionable per se, that is to say, no material damage need be shown or proved by the plaintiff.

[23] I consider that I can properly assess, and I assess that the defendant pays compensation as damages to the plaintiff for having been deprived of the use of his town allotment as aforesaid in the sum of $1,000.

[24] As to the prayer and claim of the plaintiff for exemplary damages, I am afraid that I and this Court are bound by the decision of Privy Council in Kingdom of Tonga v Mokofisi [1990] Tonga LR.58 which held that exemplary damages be granted only in one of the 3 categories which were specified by the House of Lords in the case of Rookes v Barnard [1964] A.C.1129 and which was followed in Cassell & Co v Broome [1972] 1 All ER (H.L) 824. None of those 3 categories applies in the present case and no evidence was given that this would bring this case within one of those 3 categories. I am therefore unable to consider any damage for exemplary damage.

[25] I however consider that the plaintiff is entitled to be paid by the defendant for his legal costs in attendances of his counsel in July 2020 and in October 2020, as well as his costs in these proceedings. I also consider that he be also compensated for the cost of the excavator and of his workmen in October 2020.

Orders

[26] Accordingly, I make the following orders:

(a) The defendant shall forthwith and no later than 7 days from the date on which he is served with a copy of this ruling remove his pig pen and his pigs from the town allotment Book 391 Folio 77 of the plaintiff.

(b) The defendant is restrained and is prohibited from entering or doing any act upon the said allotment except with the written consent of the plaintiff.

(c) The defendant shall pay damages to the plaintiff in the sum of $1,000.00 within 1 months from date he is served with a copy of this ruling.

(d) The defendant shall also pay the costs of the plaintiff counsel in attending to this matter in July and October 2020, which shall be billed and served upon the defendant, to be taxed, if not agreed.

(e) The defendant shall also pay the costs of these proceedings, to be taxed, if not agreed.

(f) The plaintiff shall cause a sealed copy of this ruling to be served upon the defendant personally and to file in Court a certificate of that service.

Niu J

Nuku’alofa: 8 April 2021 J U D G E