Tonga Development Bank v Squash Export Co Ltd [2014] TOSC 35; CV 69 of 2012 (27 June 2014)

THE SUPREME COURT OF TONGA
CIVIL JURISDICTION
NUKU'ALOFA REGISTRY

CV 69 of 2012

BETWEEN:

TONGA DEVELOPMENT BANK
Plaintiff

AND

1. SQUASH EXPORT CO. LTD
2. HON. DR. FRED V. SEVELE
Defendants

Mrs F. Vaihu for the Plaintiff
No appearance by the Defendants

DECISION

1. Judgment in default of Defence was entered against the Defendants on 20 September 2012. Paragraph 2 of the Order required the Defendants to deliver certain security assets to the Plaintiff in the event of failure to satisfy the judgment debt. These assets included a pumpkin shed. The debt was not paid.
2. On 7 January 2013 a writ of possession was issued. Paragraph 1 required the Bailiff specially to seize the pumpkin shed. According to the return filed on 3 February 2014 several items were seized but not the pumpkin shed. The omission to seize the pumpkin shed was not corrected until 16 June 2014. Meanwhile, the Plaintiff had sold the shed to Mr Ma'ake Faka'osifolau.
3. On 23 May 2014 the present application was filed. It is an application for an order that "the Plaintiff and the successful tender Mr Ma'ake Faka'osifolau" be granted reasonable time (six weeks) to remove the pumpkin shed from the land on which it stands.
4. In paragraph 3 of the application and in the supporting affidavit filed on behalf of the Plaintiff it is stated that the land occupied by the pumpkin shed was previously leased by Mr Tupou Loto'aniu to either or both of the Defendants. It appears from a judgment in LA 06 of 2013 that this lease expired on 1 July 2011. On 28 July 2011 one Peter Dean Tupou, the son in law of the landholder was granted a fresh lease.
5. When Mr Peter Dean Tupou took possession of the land the pumpkin shed was already standing on it. According to paragraph 4 of an affidavit filed by Mr Tupou, on 3 June 2014, in July 2012 he "granted" the First Defendant 21 days to remove the shed from his land. The request was apparently based on a misunderstanding of the covenant included in the standard form of lease which allows the landholder to take possession of chattels standing on the land if the rent is unpaid for 21 days. Nothing of that kind is alleged in this case. The shed was not removed. It appears that Mr Tupou and the Plaintiff entered into negotiations for Mr Tupou to purchase the shed. These negotiations were not successful, not least because Mr Tupou required the Plaintiff to lend the amount needed to purchase the shed.
6. On 9 May 2014 Mr Tupou again wrote to the Plaintiff demanding that the shed be removed within 14 days. Failure to remove would result in proceedings "for restraining order, damages" and "rental at the rate of $500 per day plus $100 per square meter per day for trespass". The shed has still not been removed however I am not aware that any proceedings have been commenced by Mr Tupou. Although he has filed evidence in these proceedings he is not a party to them.
7. The law of landlord and tenant in Tonga is largely to be found in the Land Act however, as explained by the Privy Council in O.G. Sanft & Ors v Tonga Tourist Development Co [1981-1988] Tonga LR 26, equity is not wholly excluded.
8. In Kolo v Bank of Tonga [1997] Tonga LR 181, 183 the Court of Appeal pointed out that:
   • "The intricate law of fixtures and accretions to land, which applies elsewhere, is not wholly appropriate to Tonga".
9. The fact that Tonga also has a Land Court with its own jurisdiction quite distinct from that of the Supreme Court, must not be overlooked.
10. Despite these difficulties, in my opinion the position here is quite plain. Mr Tupou took the land from his father-in-law knowing that the pumpkin shed, a chattel, not part of the land, was erected upon it and that the chattel belonged to the Plaintiff. An order for possession of the shed has been made by the Court and has not been set aside. Taking guidance from Megarry and Wade, the Law of Real Property, 6th Edition paragraphs 14-316 to 14-328, I hold that the Plaintiff (by itself, its servants or agents) is entitled to a reasonable time (an undisputed six weeks) to remove the pumpkin shed from Mr Tupou's land. Failure to allow the removal would, on the face of it, amount to a contempt of the Court's order for possession. That is not to say, of course that Mr Tupou may not have actionable rights against the Plaintiff, should he chose to commence proceedings.

Result:

1. It is ordered that the Plaintiff, by itself, its servants or agents is to have six weeks from today to remove the pumpkin shed from the land presently held by Mr Peter Dean Tupou.
2. I will hear counsel as to costs.
   

Dated: 27 June 2014 CHIEF JUSTICE