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Bank of Tonga v Vaka'uta [1994] TOLawRp 5; [1994] Tonga LR 25 (7 February 1994)

[1994] Tonga LR 25

IN THE SUPREME COURT TONGA

NUKU’ALOFA

BANK OF TONGA

v

VAKA’UTA

Dalgety J
Civil Case No. 19/91
2 & 7 February 1994

Words and phrases - house

Execution - Distress - a motel is not a house - but is moveable or personal property.

The Plaintiff/Judgment Creditor sought a Writ of Distress against the Defendant's motel.

Held:

1. A house is exempt from execution under a writ of distress.

2. A motet is not a house and is personal property or chattels and therefore distrainable as goods.

3 A writ of distress could be issued and the Bailiffs could execute such against the motel.

Statutes referred to: Magistrates' Courts Act 554

Laws Consolidation Act 1988 s.11

Rules referred to: Supreme Court Rules 1991 0.29 r.7, 0.26 r.11

Counsel for Judgement Creditor : Mr Appleby

No appearance for Judgement Debtor

Counsel for Attorney General : Mr Elrington
Judgment

On 19th June 1991 Judgment was granted to the Plaintiffs against the Defendant in the sum of 55,831.36 pa'anga plus costs of 250 pa'anga, together with interest thereon at the rate of 10 per centum per annum from the date of Judgment until payment. Some 11,000 pa'anga has been paid, leaving a considerable balance outstanding.

A Distress Warrant for that balance, number 40/92, was issued on 2nd December 1992, That Court Order has not been enforced within a year of issuing and is now spent [though there is of course nothing to prevent the Plaintiffs of now applying for what in the Supreme Court properly is called a WRIT OF DISTRESS - see Order 29 Rule 7 of the Supreme Court Rules 1991 ("the 1991 Rules")]. It now transpires that the reason for non-enforcement of this Court Order was the intervention of a Civil Servant, not himself a lawyer, who purported to give legal advice to the Bailiffs and apparently ordered them not to enforce the Order.

It should be understood that nobody is entitled with impunity to interfere with the execution of Court Orders. Execution is an essential part of the administration of justice. It is carried out by Bailiffs who in that respect are officers of the Court answerable to the Court for the performance of their official duties. They must take directions thereanent only from the Court. If they are in any doubt as to their position they may seek legal advice from Crown Law and if appropriate may bring before the Court a Summons for Directions. The Court will then direct them appropriately. This is judicial task, not matter of administration for civil servants. The Bailiff system is new to Tonga so perhaps the appropriate procedures were not fully understood by all involved. I trust they are now!

The Bank of Tonga now seeks a declaratory Judgment and guidance on procedure. In the Supreme Court the Form of Writ of Distress used is directed to "the officer in Charge of the Bailiff Section, Ministry of Justice and to all Bailiff Officers, as also to all Officers of Police" and it operates as a COMMAND upon them to seize the whole moveable property of the debtor - that is, all his chattels - except for certain specified items. This is an Order that they require to obey 'without delay'. The property they are commanded to seize is the whole moveable property of the debtor (apart from excepted items) wherever it be situated in Tonga, not just that property situated in the district of Tonga from which the debtor emanates or presently resides. Thus if a debtor lives in Ma'ufanga but has property in 'Eua, the 'Eua property is capable of being seized under a Writ of Distress.

Section 54 of the Magistrates' Courts Act (cap 11) as amended by the Magistrates' Court (Amendment) Act 1991 (cap.13) requires a bailiff "without delay" to seize a debtors goods and make an inventory thereof. Section 54(d) excepts from seizure -

"houses, fixtures, growing crops, the clothing of a person (i.e. the debtor) and his family and, to the value of 200 pa'anga, the tools and implements of his trade...”

These are of course all essential items of property required for personal use. They are basic survival item, sometimes called necessaries. There cannot be anything more basic to a family than their home. The question has now arisen as to the precise meaning of the word “houses” in Section 54 (d).

It may seem unusual to see 'houses" dealt with in an enforcement provision relating to moveable or personal property for in most major jurisdictions within the Commonwealth, so I am informed, houses accrue to and form part of the and upon which they are contructed and therefore fall to be dealt with as heritable or real property. In Tonga however land and property built thereon comprise separate legal estates. Thus a charging order can be made over land or other real property see Intracor Trading Co. (N.Z) Ltd .v Finau [1990] Tonga LP 133 and Order 26 Rule 11 of the 1991 Rules. The corresponding order against personal property is a Writ of Distress.

But what is a house? Its primary meaning as recorded in the 8th edition (1990) of the Concise Oxford Dictionary is as -

"a building for human habitation."

Not unsurprisingly the Courts have refined that very basic definition. Harvey CJ in the Australian Case of Ex parte High Standard Constructions Ltd, [1928] NSWStRp 107; (1929) 29 SRNSW 274 considered the primary meaning of house to be -

"a dwelling-house for a family".

Prima facie the term 'houses" means dwelling houses" according to Pollock CB in Surman -v- Darley, 14 LJMC. 145. There am also a number of cases cited at page 1261 of Volume 2 or the 4th edition (1972) of Stroud's Judicial Dictionary which leads the editor to conclude that -

"It may therefore be said that, generally, a house is a structure of a permanent character, structurally severed from other tenements (and, usually, but not necessarily, under its own separate roof) that is used, or may be used, for the habitation of man, and of which the holding (as distinct from lodgings) is independent."

I have no difficulty with any of these descriptions. Unless the context of the Act requires a particular meaning then I consider that words should be construed according to their ordinary meaning in everyday usage. It is the usage of that term in the English language which is paramount having regard to the provision of Section 11(2) of the Laws Consolidation Act 1988. So in my mind a house is a dwelling house where a man lives, sometimes with his family that house may be an independent detached dwelling, or a semi-detached property, or a flat in a tenement. In its ordinary use it would not be a term apt to include hotels, motels, or in some circumstances a guest-house. Thus in Wolf -v-Crutchley. [1971] 1 All ER 523 the Court of Appeal refused to describe as a house a building comprising two properties which the leaseholder ran together as one guesthouse. A man does not normally constructor operate a motel as a dwelling-house for his family. He runs it as a commercial business to provide temporary accommodation and services to travellers whose period of residence is necessarily transient.

In this case the Defendant has lodged in process a five page detailed list of his assets. Included therein are his dwelling house at Pangai, 'Eua and, separately, the Fungal-Jana Motel, also at Pangai, 'Eua. The Motel is therefore property which Bailiffs must seize when executing a Writ of Distress against the Defendant's property. It is not a house for the purposes of Section 54(d) of the Magistrates Court Act. I shall therefore pronounce an ORDER in the following terms -

IT IS ORDERED THAT The Fungafonua Motel, 'Eua is not a house for the purposes of Section 59(d) of the Magistrates Court Act (as amended), but comprises personal property or chattels of the Defendant and as such is "goods" within the meaning of Section 54(a) of he said Act.