Latu v Kaho [2022] TOLC 10; LA 18 of 2020 (9 September 2022)

IN THE LAND COURT OF TONGA

NUKU'ALOFA REGISTRY

LA 18 of 2020

(Writ of Distress No.4 of 2022)

BETWEEN:

TANAKI LATU Plaintiff / Judgment Creditor

-and-

LOLANGI KAHO Defendants / Judgment Debtor

-and-

[1] SIONE M. KAHO

[2] FATAI KAHO Claimants

Interpleader proceedings

RULING

BEFORE: LORD CHIEF JUSTICE WHITTEN QC
Appearances: Mr D. Garrett SC for the Judgment Creditor
The Judgment Debtor
The Claimants
The Bailiff
Hearing: 9 September 2022
Ruling: 9 September 2022

1. This is an interpleader summons issued in response to a report by the Bailiff on execution of a Writ of Distress in respect of a judgment debt of TOP$46,067.50 and claims to the items seized. At the conclusion of the hearing, the following ex tempore ruling was delivered.
2. On 11 May 2022, the Bailiff executed the Writ of Distress and seized a number of items at the Judgment Debtor’s residence. The items seized by the Bailiff were a bed, a stove, a glass draw, a refrigerator, a television, a dining table, sewing machine, a sofa set and a silver Toyota van registration number L23608.
3. Claims have been made to the seized goods by Fatai Kaho, the wife of Lolangi Kaho, the Judgment Debtor, and her father, Sione Kaho. More specifically, Sione claims the sofa set and the van as his and Fatai claims the balance of the household furniture items. They have each filed affidavits sworn 25 July 2022 and they also relied on an affidavit of Samiu Tuvalu Fifita sworn the same day.
4. Samiu deposed, in summary, that;
   • (a) Fatai is his aunty;
   • (b) in 2018, when Fatai’s daughter was getting married, Samiu’s parents sent some items over for her;
   • (c) in 2019, his parents sent over other items for Fatai’s family to use including the household items referred to above (i.e. excluding the sofa set and van).
5. Mr Garrett, who appears for the Judgment Creditor, was unaware of Samiu’s affidavit. It was shown to him from the court file and he elected to proceed with the hearing.
6. Fatai’s affidavit confirmed Samiu’s evidence in relation to the household items. The Judgment Creditor has not made any challenge to the claim of ownership to those items, and I therefore uphold that claim.
7. The Judgment Creditor has challenged the claims to ownership of the sofa set and the van.
8. Sione’s evidence in relation to the sofa set was that it was purchased by his son (known as Pio Sa’ili) in New Zealand and sent over in around 2013 for he and his wife Mosiana ‘for use in their house’ because of their age and the need for comfortable chairs to sit on. Fatai confirmed that evidence.
9. Mr Garrett submitted that because there was a lack of any independent, supporting evidence, I should reject the claim in respect of the sofa set. However, I am satisfied from Sione’s evidence that the sofa set belongs to him. I found Sione to be an honest witness and that any lack of explanation or understanding about some of his affidavit evidence may be attributed to the fact that, as he explained in cross-examination, it was Fatai who took him to see a lawyer for the preparation of their affidavits and it was Fatai who gave the instructions for both affidavits. I therefore uphold Sione’s claim to the sofa set.
10. Which brings us then to the van.
11. In her affidavit, Fatai deposed that the van was sent by Pio Sa’ili in 2019 “for us to use” to take Sione and Mosiana around especially to hospital because Mosiana was sickly. She also claims the van belongs to Sione. Notwithstanding, it was registered in her name on 8 June 2022. Sione’s affidavit evidence was to the same effect. Exhibited to his affidavit was a bill of lading for the shipment of a Toyota vehicle. Exhibited to Fatai’s affidavit was a certificate for registration for a Toyota vehicle.
12. During cross-examination, however, a different story emerged. Mr Garett deftly identified that the chassis number and year of make (1992 versus 1996) for the van described on the bill of lading were significantly different to that shown on the certificate of registration. Whilst not referred to in cross-examination, the same comparative exercise also reveals that the weight of the vehicle in the bill of lading was stated as 1,200 kilos whereas the certificate of registration records it as 1,400 kilos.
13. There are clearly two different vehicles in question and neither Fatai nor Sione was able (or willing) to satisfactorily explain the situation. It is clear in my view that the evidence in the bill of lading sought to be adduced in support of the claim for the van sent from Pio is in fact for a different vehicle than that now registered in Fatai’s name.
14. When she was cross-examined about the discrepancies, Fatai eventually said that the vehicle had been brought over and that Sione had asked her to register it. She said that she asked her husband Lolangi to go and register it in her name but he in fact had it registered in his own. Notably, and despite attempting to mutter answers to Fatai during her evidence (resulting in the court usher directing Lolangi to sit at the rear of the court), Lolangi did not give evidence during this part of the proceeding. Fatai continued that when the brother, Pio, found out about the court proceedings, he became angry because the van was not then registered in Fatai’s name.
15. In answer to a question from the Bench, Fatai said that Lolangi had the van registered in his name in 2019. She registered it in her name on 8 June 2022. Lolangi prepared and signed a document authorising the transfer of the van to Fatai. When asked whether that was done before or after judgment in the substantive proceeding was delivered, Fatai vacillated between it happening this year to then later saying that it was ‘before judgment’ to ‘last year’ and back to ‘this year’. About all of those answers, she was either mistaken or lying because the judgment was delivered on 21 July 2021. I also note the Bailiff’s report is dated 11 May 2022.
16. The fact that between the two of them, Lolangi and Fatai decided to register the vehicle in her name after the judgment and after the Bailiff had already endeavored to execute the Writ of Distress, clearly demonstrates a fraudulent attempt to defeat execution on the judgment, including by using Sione to claim the van. I therefore disallow the claim in respect of the van.
17. The Bailiff is directed to proceed with sale of the van and remit the net proceeds to the judgment creditor towards payment of the judgment debt.
18. In the circumstances, I order that Fatai and Lolangi Kaho pay the judgment creditor’s costs of and incidental to the interpleader summons, to be taxed in default of agreement. The Bailiff did not make any claim for costs.

NUKU’ALOFA	M. H. Whitten QC
9 September 2022	LORD CHIEF JUSTICE