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.

[4]	The Church persuaded the Minister of Lands to make Crown land at the higher end of the water field available for the residence and the church began the construction of the house. Local residents and members of water committee set up to administer the management of water supply became concerned that the septic tank proposed for the house would contaminate the water supply. In February 2013 proceedings were commenced seeking an interim injunction preventing the completion of the partly constructed building. The Chief Justice granted an interim injunction preventing the use of the by now constructed septic tank. Later the same month the Judge allowed the appellant to complete the construction of the house but granted an indefinite order preventing use of the tank. 

[5]	The respondent's statement of claim, after pleading the basic facts, sought removal of the house. Trial of the case took place in September 2013 and January 2014.

[6]	Expert evidence was called by each side. The respondents (plaintiffs in the Court below) called evidence from a planning engineer with the Tonga Water Board and the Deputy Secretary at the Natural Resources Division of the Ministry of Lands both of whom expressed concern that the septic tank, if used, had the potential to contaminate the water supply. The respondents also called the Director of Health who relied on a report by a Senior Inspector of Health who had concluded that the situation of the tank "does not confirm it will affect water supply...". The appellant called evidence from an engineer who described how the tank had been built and gave his opinion that it would not leak.

[7]	The Judge preferred the evidence of the experts from the Water Board and the Natural Resources Division and concluded that "... it would be unacceptably unsafe to allow the septic tank in its present location to be used." A permanent injunction in the terms set out above was granted.

[8]	For the sake of completeness we mention that proceedings have been commenced in the Land Court seeking orders relating to the land.

The appellant's arguments

[9]	First Mr Fakahua argued that the respondents did not have standing to bring the proceedings and that there was no resolution of the Water Committee to bring the claim. This argument cannot succeed. The appellants are all residents of the villages and some are members of the Water Committee. In our view every resident supplied with water from the well would have standing to bring these proceedings. They are all directly affected.

[10]	Secondly, relying on s.138 of the Land Act, Mr Fakahua argued that the proceedings should be in the Land Court and that the committee should request the Minister to reserve the water area for Public Health purposes. We are satisfied that the proceedings which were brought to prevent a potential nuisance were properly brought in the Supreme Court. The action was one in tort and was not within the jurisdiction of the Land Court.

[11]	We are satisfied for the reasons clearly enunciated in the judgment of the Chief Justice that the injunction was rightly issued. The appeal is dismissed. The respondents are entitled to costs to be fixed if necessary by the Registrar.	

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Salmon J

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Handley J

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Hansen J

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Tupou J