Tu'ivai v Kingdom of Tonga (2) [2007] TOSC 39; CV 290-2007 (23 November 2007)

IN THE SUPREME COURT OF TONGA
CIVIL JURISDICTION
NUKU’ALOFA REGISTRY

CV. 312 of 2007

BETWEEN:

‘AMINI TU’IVAI
Plaintiff

AND:

KINGDOM OF TONGA
Defendant

BEFORE THE HON. JUSTICE ANDREW

Counsel:
Mr Tu’ivai appear in person
Mr Sisifa for the Crown

Date of hearing: 20th November, 2007.
Date of judgment: 23rd November, 2007.

Judgment

The defendant/Applicant applies for the Plaintiff’s action in this matter to be struck out on the basis that:

1. This is a similar claim that was struck out in civil case CV.789/03 ‘AMINI TU’IVAI v ‘UNGA FA’AOA and others.
2. That the allegations do not reveal any reasonable cause of action.
3. That the allegations are frivolous and vexations.
   

The background to this matter is that the Plaintiff had been convicted of an attempt to evade import duties in relation to 600 cartons of Bounty Rum. He was later fined $20,000 and following non payment of that fine he was imprisoned for a short period. The current Statement of Claim relates to events surrounding all of that process.

The current Statement of Claim alleges

1. The loss of the 6000 bottles of rum.
2. Unlawful search
3. Loss of documents
4. Unlawful arrest
5. Unlawful interview
6. Incompetent Prosecution
7. Malicious Prosecution
   

The short answer to the Plaintiffs claim is that the exact similar claim was struck out by the Court on the 25th October 2006 on ‘AMINI TU’IVAI v ‘UNGA FA’AOA & ORS. CV.789/2003. The Plaintiff admits that the claims were in similar terms. They concerned the same allegations of unlawful search, unlawful arrest, false imprisonment, malicious prosecution, trespass to chattels, loss of 600 bottles of rum and undue duress.

(1) The 1st claim here is for the loss of 600 bottles of rum.

That was also dealt with in the Court of Appeal on the 16th August 2006 in TU’IVAI v R [2006] TOCA 8 where the Court said: "A further submission put by MR TU’IVAI was that the Chief Justice was wrong to order the forfeiture of 600 cartons of rum the subject of the charge. It is correct that he did order forfeiture.

However it was unnecessary of him to do so. Forfeiture is an automatic consequence of conviction under S.210(1) (e) of the Customs & Excise Act.

(2) The second claim concerns unlawful search:

This mater in Res Judicator. It has been struck out already. The allegation does not reveal any reasonable cause of action. The matter was dealt with also by the Court of Appeal in TU’IVAI v R AC 01/2006; "... The Crown points to evidence supporting the legality of the search and also makes the point that the statements made by MR TU’IVAI during the search were made entirely voluntarily .... It is too late to raise these issues now".

(3) Loss of documents. This claim was previously struck out. It is related to the claims concerning illegal search. The claim is frivolous.

(4) Unlawful arrest. This has already been struck out. No cause of action is disclosed. It was not raised at trial nor when the respondent was sentenced.

(5) Unlawful interview. It was never an issue at the trial of the respondent. No Voir dire was ever conducted. There is no cause of action disclosed.

(6) Incompetent Prosecution. This matter was dealt with when the respondent sought Judicial review in 2005 and it was dismissed. There was no evidence of malice or incompetence. The accused was convicted by a Jury. This claim discloses no cause of action.

(7) Malicious Prosecution. This matter has already been struck out. Issues concerning malicious prosecution were dealt with in TU’IVAI v R [2006] TOCA 8. It was held that there was no breach of the Constitution nor any unfairness.

All of the 7 claims have already been decided or disclose no cause of action.

The Respondent says Res Judicata was never pleaded. But it was referred to in any event and is a legitimate pleading to make.

The Plaintiff seeks to amend his Statement of Claim as he frequently does but I am satisfied that that raises no new or different allegation than those already dealt with.

For all of these reasons, the Statement of Claim in this matter is struck out. Costs are awarded to the applicant/defendant, the Kingdom of Tonga.

DATED: 23 November 2007.

JUDGE