Home | Databases | WorldLII | Search | Feedback Court of Appeal of Tonga

To'a v Inu [2009] TOCA 7; AC 08-2009 (10 July 2009)

IN THE COURT OF APPEAL OF TONGA
NUKU’ALOFA REGISTRY

AC 08 of 2009

BETWEEN:

MAEA TO’A
Appellant

AND:

1. POLICE OFFICER SIONE INU
2. POLICE OFFICER SOANE NAUFAHU
3. MINISTRY OF POLICE
4. KINGDOM OF TONGA
Respondents

Coram: Ford P
Burchett J
Moore J

Counsel: Mr. Fifita for the Appellant
Ms. Mafi and Ms. Lavakei’aho for the
Respondents

Date of hearing: 2 July 2009.
Date of judgment: 10 July 2009.

JUDGMENT OF THE COURT

Introduction

[1] The appellant has appealed against a judgment of Shuster J. dated 20 February 2009 in a civil case where he was the plaintiff and the respondents the defendants. The claim was one for damages based on alleged unlawful arrest, false imprisonment and assault. Although the judgment records the dates of hearing as 10 - 11 January 2009 that is incorrect. The case went to trial on 10 - 11 February 2009.

[2] The appellant sought damages under various heads totalling $11,500.00 together with costs and interest. The first and second respondents were police officers and it was accepted that if the plaintiff was successful in his claim then the third and fourth respondents would be vicariously liable for the tortious acts of the police officers.

[3] In his judgment, the primary judge concluded that the plaintiff had failed to prove his case against the defendants and, accordingly, the claim was dismissed and the defendants were awarded costs to be taxed by the Registrar.

[4] One unusual feature of the hearing was that on 2 February, 2009 eight days before the trial commenced, counsel then acting for the four respondents filed an application for leave to amend the statement of defence and to withdraw as counsel acting for the first respondent. The latter application was based on the fact that the first respondent had left the police force and moved to New Zealand to live but his whereabouts in New Zealand could not be traced. Counsel for the appellant filed a notice of opposition to the application on 3 February 2009 but, for reasons explained in the judgment, the applications were not considered by the trial judge until 10 February 2009, the morning of the hearing. In his judgment the judge said:

"On Tuesday the 10th February 2009 -- the trial date, I told both parties to the proceedings in chambers and again in open court that I was not prepared to delay this trial any further because it is now four years and four months since the plaintiff first issued and served his writ. Various witness subpoenas had been issued, and I wanted the case to proceed to trial immediately -- without any further delay because further it had been evident for quite some time that the first defendant cannot be located (or contacted) because he is living overseas.”