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Free Weslyan Church of Tonga v Fiva [2014] TOCA 14; AC 11 of 2014 (31 October 2014)

IN THE COURT OF APPEAL OF TONGA
CIVIL JURISDICTION
NUKU'ALOFA REGISTRY

AC 11 of 2014
[CV 8 of 2013]

BETWEEN:

FREE WESLEYAN CHURCH OF TONGA
Appellant

AND:

1. Falanisesi Fiva
2. Silongo Telefoni
3. Loumaile Hakaumotu
4. Kilisimasi Hakaumotu
5. Siaosi Saafi
6. 'Ofa Lasa
Respondents

Coram : Salmon J
Handley J
Hansen J
Tupou J

Counsel : Mr T. Fakahua for the Appellant
Mr O. Pouono for the Respondents

Date of Hearing : 23 October 2014
Date of Judgment : 31 October 2014

JUDGMENT OF THE COURT

[1] On the 14th February 2014 the Lord Chief Justice granted a permanent injunction preventing the use of a septic tank on property of the appellant. The injunction prevented use of the tank in its present location or any other location within the boundaries of the water field supporting the well from which the communities of Ha'asini and Hamula draw their water.

[2] The Church has appealed that decision.

[3] The facts of the case are set out clearly in the decision of the Chief Justice and it is unnecessary to repeat them in detail in this judgment. Suffice to say that in about 1963 there was an outbreak of typhoid in the villages and after an investigation by an officer of the World Health Organisation 6 or 7 families then living on the area now known as the water field were required to relocate. The reason for this was that the communities in the village use septic tanks systems to treat and discharge their sewage and relocation of those villagers removed the risk of contamination of the water table and the well from their septic tanks. There remained in the water field a shop and a residence which, although they had septic tanks, were so located that they were not thought to be a problem. This was the situation from 1963 to 2012 when the appellant decided it wished to build a new residence for its local minister.