Fuimaono v Vaingalo [2008] TOSC 7; CV 347-2006 (16 April 2008)

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

CV 347 of 2006

BETWEEN

1. LAU’IA FUIMAONO
2. SAVELIO FUIMAONO
Plaintiff

AND

TEVITA VAINGALO
Defendants

BEFORE THE HON. CHIEF JUSTICE FORD

Counsel:
Mr. Kaufusi for the plaintiffs and
Mr. Piukala for the defendant.

Date of hearing: 13, 14 March and 7, 8 April 2008
Date of Judgment: 16 April 2008

JUDGMENT

The claim

[1] The plaintiffs are brothers. In their statement of claim dated 5 May 2006 they claim a total of $6,140.00 by way of damages against the defendant for wrongfully ploughing up their cassava plantation. The cassava had been grown on an eight acre tax allotment at Lapaha owned by a widow, Tupou Vakaahi.

[2] The plaintiffs allege that "in 2005" the younger brother, Savelio, approached the widow and she allowed them to grow the crop of cassava. They further allege that in February 2006 they started harvesting one acre and then on 20 April 2006 the older brother went to the plantation and found it "devastated" because the defendant had ploughed the remainder of the crop.

[3] The sum for damages is made up of the alleged cost of preparing the land and planting the crop, $2,140.00 and the anticipated sale of 500 baskets of cassava valued at $8 each, $4000.

The evidence

[4] The plaintiffs’ first witness was the older brother, 62-year-old Lau'ia. He told the Court that it was his younger brother Savelio, who now lives in New Zealand, who had approached the widow "in 2005" and made the arrangements to obtain the use of the allotment. Lau'ia gave details of how the ground was prepared for planting. He told the court that cassava normally takes nine months to grow but later he said that it could be harvested any time up to one year three months and it would still be in good condition. He was asked in examination in chief when the crop in question had been planted and he replied, "I believe it was in February (2005)." Then, in answer to a totally leading question from his counsel, "wasn't it April?" the witness recanted and said, "think it was April – I was mistaken." In cross-examination Lau'ia was again asked when the cassava was planted and he replied that it was in February 2005.

[5] Lau'ia said in evidence that around November 2005 they harvested some of the crop for a funeral. When he was later asked why the whole crop had still not been harvested by 20 April 2006, the witness responded:" I was still waiting for my brother from New Zealand so he would tell me when to harvest the crop." They were apparently planning on selling the balance of the crop in New Zealand.

[6] At the end of Lau'ia's evidence, the Court pointed out to plaintiffs' counsel that the statement of claim did not disclose any cause of action. All that had been alleged was that the defendant had ploughed the plaintiffs' cassava plantation resulting in the damage claimed. Plaintiffs' counsel then sought an amendment to the pleading to insert a new paragraph raising trespass as a cause of action. Mr Piukala strongly objected but the amendment was allowed. The additional paragraph read: "The actions of the defendant in ploughing the cassava amounted to trespass."

[7] For his part, the defendant had pleaded that the cassava crop had been growing on the land for over two years unattended and it was no longer of use. He also alleged that he had been authorized by the landholder to plough the land and plant a crop of squash pumpkin.

[8] Lau'ia told the court about two meetings he had with the defendant after the ploughing incident. In relation to one of these meetings the witness said in cross examination:

"The owner who gave permission to the defendant came over and kissed me and apologized for what he had done."

Elaborating on this statement the witness said that the person who apologized to him was the widow's son, Bruce, and Bruce had apologized because he had permitted the defendant to plough and use the land.

[9] The plaintiff called evidence from other witnesses who had to a greater or lesser extent been involved in the planting and cultivation of the cassava crop. Taniela Sole said that he had been paid by the plaintiffs to assist in preparing the ground for planting and in some of the weeding work. He said that they carried out the work in 2005 but he could not recall the month the crop was planted.

[10] Nau Paletu'a said that he had worked as a labourer on the plantation when the crop was planted and he had inspected the damage after the cassava had been ploughed by the defendant. He rejected the proposition that the crop was two years old and claimed that it was not even one-year-old at the time of the ploughing.

[11] The plaintiffs also called evidence from a former Ministry of Agriculture employee, Semisi Pale, who had inspected the damaged crop of cassava after the ploughing. Mr Pale made a report at the time which he produced to the Court. He estimated that one acre had been harvested previously and the remaining seven acres had been damaged by the ploughing. The witness said that some variety of cassava can be harvested in 6 to 10 months from planting but the particular variety in question in the present case "Mataki'eua" would take up to 12 months.

[12] Mr Pale was asked in examination in chief about the condition of the cassava when he saw it after the ploughing. He replied: "I took some of the root crops home to cook to see if it was in good condition. After cooking it, it was still in very good condition." Later he explained that if cassava is not fit for human consumption there is still a market for it to be sold as pig food and he estimated that the price in either case would be similar to his estimate of $8 per basket.

[13] The plaintiffs’ next witness was the widow, Tupou Vakaahi. Unfortunately, despite objection, her examination in chief was marred by a succession of leading questions. Tupou told the court that she had been approached by Savelio in either March or May 2004 to have the use of her allotment to grow a crop. Rather surprisingly perhaps, she was not asked by either counsel whether there had been any consideration for the use of the land. In all events, Tupou was adamant that the crop had been planted in 2004 and the permission she had given the plaintiffs was to have the use of her land for "just one year." She expected them to have harvested the crop by June of 2005 but as she put it, "they exceeded the year."

[14] Tupou said that she did not know why Savelio did not harvest the crop in 2005. She was asked in examination in chief whether at any time she had asked Savelio to uproot his crop. She replied:

"That was up to him to come and ask me. I hoped he would have done so. I was waiting for him to know what he was going to do. But he never came and talked to me about it. I hoped to talk to him but he never came to my home."

In answer to a question from the Court, Tupou explained that after Savelio had come in March or May 2004 and asked for the use of her land, she had never seen him again.

[15] Tupou recalled the subsequent approach from the defendant in March 2006 inquiring as to whether he could have the use of the land in question to grow a crop of squash pumpkin. She said that she was keen for him to grow squash on her property. Both she and her son Bruce had inspected the allotment and concluded that the cassava crop "was useless". In her words, "the cassava was hollow." Tupou confirmed that her son had then given permission to Tevita to plough the land and grow his crop of squash.

[16] After Tupou had concluded her evidence, the hearing was adjourned and when it continued just over three weeks later counsel called the second plaintiff, Savelio, to the witness stand. Savelio explained that in the years 2002 and 2003 he had used the allotment in question for the growing of squash and on each occasion he had paid the widow $1000. On those occasions the squash had been planted around the middle of the year and harvested in October/November the same year.

[17] In reference to the cassava crop, Savelio said that close to Christmas in 2004 Tupou came to his house and asked for some money for Christmas and for the children's school expenses for 2005. He said that he gave Tupou $1000. More than once he stressed that he had sympathy for her and that was why he gave her the $1000. That evidence, of course, was different from what Tupou had earlier told the Court. Savelio said that on the same occasion Tupou told him to go and plant on her allotment. He said that Tupou was aware at that stage that he was planning on moving to New Zealand because he had purchased a house in New Zealand. Savelio said that they had not talked about the crop he was proposing to plant nor had they talked about the length of time he could have the use of the allotment for. Savelio said that he left for New Zealand on 25 January 2005 and the crop of cassava had been planted by then. Savelio confirmed that apart from the one conversation described above he had no further contact with Tupou nor did he tell her that his brother would be looking after the crop.

[18] Savelio told the court that had Tupou put a time limit on his use of the land then he would not have used it. When he was asked how he felt when he eventually learned that Tupou had given permission for the defendant to use the allotment for the growing of squash in 2006, Savelio said that he thought Tupou "had cheated".

[19] The 57-year-old defendant, Tevita Vaingalo, told the court that he had been planting crops ever since he left school in 1964. In relation to the present case he said that he had asked a friend in Lapaha to look out for an allotment which he could use in 2006 for growing squash pumpkin. Sometime later the friend informed him that he had found an allotment which he could have the use of for $1000. He said that the person his friend introduced him to was Bruce Kautai, the son of Tupou the widow who held the allotment. When he handed the $1000 to Bruce the latter told him that when he was ready to do the ploughing he should tell him so he (Bruce) could show him the allotment and where to plough.

[20] On the day the defendant was ready to start ploughing he went over to the allotment with his tractor and tractor driver and met with Bruce. Bruce climbed onto the tractor because he wanted to show the tractor driver his own crops which he had planted at the back of the allotment which were not to be touched. After that the driver started ploughing the area in question for the growing of the defendant's squash. The defendant said that he had noted the cassava plantation on the allotment but in his opinion it "was overmatured". The witness told the court that in his experience the crop had been planted in 2004 and it had no value at all when he saw it. He said that he could tell it was overmatured simply by looking at it.

[21] The final witness in the case was 32-year-old Bruce Kautai. He told the court that his mother, Tupou, was in New Zealand when he received the inquiry from Tevita's friend about the use of the allotment in 2006 for growing squash. He said that once he received the money he telephoned his mother and told her what he was doing and she agreed. He confirmed giving permission to Tevita to use the allotment for growing his squash and he confirmed giving instructions to the tractor driver as to the area that should be ploughed. Mr Kautai was asked in examination in chief why he had given instructions for the cassava crop to be ploughed over. He answered: "The reason I had given instructions for the cassava to be ploughed over was because when I looked at the cassava it was overmatured and not cared for. That is why I gave permission for this work to be carried out. . . it was useless."

Discussion

[22] There were a number of unsatisfactory aspects of the evidence presented to the Court by the plaintiffs. There were more conflicts and inconsistencies than one would normally expect to encounter in a case of this nature. The inconsistencies were particularly notable in relation to the timing of the various events and the condition of the cassava crop. I say at once that I did not find any of the plaintiffs' witnesses entirely credible. I disbelieved Lau'ia's evidence that he would visit the cassava plantation for an inspection "normally twice a week." The most reliable witness, in my view, was the defendant. To my mind he had more experience in cropping than any of the other witnesses. Despite his obvious very real interest in the outcome of the case, he answered many of the questions in cross-examination in a dispassionate way and spoke almost as an expert witness rather than as a litigant.

[23] In relation to the planting of the cassava, I accept Savelio's statement that the crop was planted prior to when he travelled to New Zealand on 25 January 2005 but I do not accept his evidence that all the action in connection with the preparation of the land and the planting itself took place within the short timeframe he described of around Christmas 2004 to 25 January 2005. The preparation involved three lots of ploughing, ripping and burning. In my view it would have required significant urgent action for all those steps to have been carried out in a period of little over one month and none of the witnesses described the preparation work being carried out with that sense of urgency. When questioned by the Court on the timing, I did not find Savelio's answers convincing.

[24] My findings on the evidence are that the preparation of the land and the planting of the cassava all took place in the latter half of 2004. I accept that in the discussion between Savelio and the widow nothing had been said about the length of time the land would be made available to Savelio but, following the pattern in 2003 and 2004, the widow would have been entitled to conclude, as I find she did conclude, that Savelio would have harvested the crop and vacated the land by around mid 2005. I find that by the end of 2005 and certainly by March 2006 both the widow and her son Bruce would have been entitled to assume, as they did assume, that the plaintiffs had abandoned the cassava crop. In relation to the condition of the crop at the time of the ploughing, I accept the defendant's description (supported by both the widow and her son) that it was overmatured. Although I do not accept the figures put forward by the former Ministry of Agriculture employee, I am not prepared to hold that the crop had no value whatsoever at the time of the ploughing. The evidence was too unreliable, however, for me to reach any firm conclusion as to the value of the overmatured crop.

The law and submissions

[25] In relation to the tort of trespass to land, Todd in "The Law of Torts in New Zealand" 3rd edition (2001) at 8.5 states:

"The action for trespass to land is primarily intended to protect possessory rights, rather than rights of ownership. Accordingly, the person prima facie entitled to sue is the person who had possession of the land at the time of the trespass. Actual possession is a question of fact, which consists of two elements: the intention to possess the land and the exercise of control over it to the exclusion of other persons . . . . It is not necessary for the plaintiff to prove that his or her possession is lawful. It is no defence for a defendant to prove that some third-party has a better right to possession than the plaintiff, unless he or she entered with the permission of that person." (emphasis added)

[26] On the face of it, the passage quoted in the previous paragraph is a complete answer to the plaintiff's claim. The defendant has been able to demonstrate that he entered upon the land and ploughed up the overmatured cassava crop with the express permission of the owner. Even though the plaintiffs considered that Tupou had cheated on them, they elected to pursue their claim against the defendant rather than Tupou. The defendant had entered upon the land with the express permission of the owner who, in terms of the quotation from Todd above had a better right to possession than the plaintiffs. Apart from a late development in the case which I now turn to, that should have been the end of the matter.

[27] After the evidence had concluded, Mr Piukala presented his oral submissions stressing the obvious point that the defendant had not committed any trespass because he did not unlawfully enter upon the land and plough the cassava but he did so with the permission and under the direction of the landowner. In response, Mr Kaufusi, for the very first time in the case, told the court that his cause of action was not based on trespass to land but on "trespass to goods". He was challenged on this submission and it was pointed out that given the fact that initially no cause of action had been pleaded at all, it behoved counsel to take particular care with the late amendment to the statement of claim to make it clear that the plaintiffs cause of action was, indeed, based on trespass to goods rather than trespass to land. Not surprisingly, Mr Piukala objected strenuously to the new allegation.

[28] Had the plaintiffs' claim had merit, the Court at that point would have required Mr Kaufusi to make formal application for leave to again amend his statement of claim so as to include the new alleged cause of action, namely, trespass to goods. If leave had been granted it would have been on strict terms and it may have involved granting defence counsel an adjournment to either recall or call further evidence.

[29] As it turns out, I do not consider that the plaintiffs' claim has any merit and so I will deal briefly with the position had the plaintiffs actually pleaded trespass to goods as their cause of action.

[30] Mr Kaufusi was unable to refer me to any legal authority to support the proposition that damage to growing crops could support an action for trespass to goods as distinct from trespass to land. Counsel did point out that the form of warrant of distress under the Magistrates Court Act which authorizes the seizure of goods of a defendant specifically excludes from seizure, "his house and fixtures and his growing crops". A similar categorization is found in section 16 of the Probate and Administration Act (Cap.16). The point, however, is that while growing crops will be recognized as goods for certain purposes (see: Stevenson v Thompson [1924] 2 KB 240) that is a different proposition from a finding that an action for trespass to goods is the appropriate remedy in relation to damage to growing crops.

[31] I accept that I have not heard full argument on the matter but the better view seems to be that set out in Halsbury, vol 45, para 1491 where, under the heading "Trespass to Goods" the learned authors state:

"Trespass to goods is an unlawful disturbance of the possession of goods by seizure or removal or by a direct act causing damage to the goods. The subject matter of trespass to goods must be a personal chattel which is the subject of lawful possession."

Under Note 5 to this paragraph, Halsbury goes on to state:

"As to trespass in respect of crops, see para 1390, ante. Paragraph 1390 appears under a section dealing with "Trespass to Land". It states:

"The subject matter of trespass to land must be real and corporeal property, that is, land or buildings, or the vesture of land or herbage or pasture, to the exclusive possession of which the person complaining of the trespass is entitled."

[32] I read those passages as indicating that the appropriate cause of action for damage to growing crops is trespass to land. This point is supported by the recent English Court of Appeal decision in Monsanto plc v Tilly and others [1999] All ER (D) 1321 at para 22:

"Ordinarily growing crops do not become goods until they are severed from the land. Once they are so severed the owner of the crop can maintain an action for wrongful interference with the goods."

[33] In that case, the Court held that by uprooting a crop of genetically modified plants the defendants had severed them from the land, allowing a trespass to goods claim to be advanced. Whether the defendant’s actions in the instant case of ploughing the crops could be said to be analogous to this is a point on which I have not head argument. In any event, this point is moot for reasons which will become immediately apparent.

[34] The other problem the plaintiffs face in endeavouring to make out a case of trespass to goods is that one of the fundamental elements of such an action is that the plaintiff must be in possession of the goods at the time of the interference. In Johnson v Diprose [1893] UKLawRpKQB 37; [1893] 1 QB 512, 515, Lord Fisher said:

[35] Whether that old authority correctly sets out the position in relation to "a legal right to immediate possession" is something of a moot point. In Penfold Wines Pty Ltd v Elliott [1946] HCA 46; (1946) 74 CLR 204, Dickson J. disagreed with that proposition and made the point that trespass exists to protect not the immediate right to possession but possession itself.

[36] In all events, in the present case, my finding on the evidence is that at the time of the ploughing of the overmatured cassava crop, the plaintiffs did not have possession of the same nor did they have a right to immediate possession. Their rights in respect of what was left of the overmatured crop had long been forsaken.

Conclusion

[37] For the foregoing reasons, the plaintiffs fail in their claim and the defendant is entitled to costs to be agreed or taxed.

NUKU'ALOFA: 16 April 2008

CHIEF JUSTICE