IN THE LAND COURT OF TONGA
LAND JURISDICTION
NUKU'ALOFA REGISTRY

NO.L.2/2000.

BETWEEN

TUPOU AHOME’E FAUPULA
First Plaintiff

SEPULONI FAUPULA
Second Plaintiff

AND

OASIS COMPANY LIMITED
Defendant

BEFORE HON JUSTICE FINNIGAN

Counsel: 
Mr Edwards for plaintiffs.
Mr Tu'utafaiva for defendant.

Date of Hearing: 16 June 2000
Date of Judgment: 21 June 2000

INTERLOCUTORY JUDGMENT OF FINNIGAN, J.

On behalf of the plaintiffs, Mr Edwards has sought interim relief by way of injunction and has moved to strike out the statement of defence. At his request, both applications were heard at one hearing. I heard counsel for both parties in chambers on Friday 16 June, and was prevented by lack of time from giving an oral decision.

There was evidence before the court, for the purposes of the application for injunction. The submissions took about two and a half hours, mainly in respect of the motion to strike out.

I am bound to say that the argument was a textbook example of failure by counsel for the plaintiffs to understand basic legal principles and processes.

In his application to strike out the statement of defence, Mr Edwards relied heavily on the evidence in the affidavits that had been filed for the injunction application. This is forbidden by principle, as Mr Tu'utafaiva pointed out.

After that he fell into the serious error that the principle was developed to prevent. He pre-judged the evidence in favour of his clients' case and assumed it was the only judgment of the evidence that the Court could make. Yet there had been no hearing. There has been no judgment. Until then, the claims of fact are no more than that.

The application to strike out a pleading must proceed on the statements in the pleading only. In my view, both counsel contributed to the error by the verbosity of their pleadings. Many of the matters pleaded were outside what was necessary to inform fully and fairly the other party and the Court about the claim and the defence, and were details of evidence.

When one reads the pleadings, one main issue for trial emerges clearly, that being whether a certain agreement amounts to a breach of cl 4 of another agreement. A claim of breach is pleaded, and a defence is pleaded. There is no ground to strike out the statement of defence. I hold accordingly.

Mr Edwards recited some of the untested affidavit evidence and asked what further need could there be for witnesses, a question reminiscent of one before the Sanhedrin one dark night long ago. Even on that evidence which Mr Edwards advanced as already proving the plaintiffs' claims, I am bound to say that in addition to the findings that Mr Edwards finds irresistible, other findings suggest themselves.

Because of that, I am able to go further and state that if the matter proceeds to a hearing and the plaintiffs' claims are not upheld, the Court at that time will consider allowing costs to the defendant on a solicitor and own client basis.

I turn to the application for interim relief. I am satisfied that there is a serious issue for trial, the one stated above. Had the parties been able to communicate better, they might have resolved it in negotiation. On the balance of convenience, I am satisfied that, whatever injury to the plaintiffs may occur, damages will be an adequate remedy for the plaintiffs if injury accrues to them after refusal of this relief.

Upon delivery of this interim judgment, counsel for both parties will be invited, with their clients, to a Directions Hearing so that the future of this action may be discussed.

Costs on these interlocutory applications are allowed to the defendant on the basis of a half-day hearing. The Court will fix the costs at the Direction. Hearing if counsel are unable to settle an amount.

NUKU'ALOFA, 21 June 2000

JUDGE