Home | Databases | WorldLII | Search | Feedback Tonga Law Reports

Tu'ipulotu v Rosic [2008] TOLawRp 53; [2008] Tonga LR 273 (24 October 2008)

IN THE SUPREME COURT OF TONGA
Supreme Court, Nuku'alofa

AM 5/2008

Tu'ipulotu

v

Rosic anors

Shuster J
24 October 2008

Practice and procedure – question of jurisdiction – did not involve land – claim for damage to movable property – Magistrates Court right venue not Land Court

On 18 October 2007 the appellant appealed to the Supreme Court against a ruling made in the Magistrates Court at Vava'u that this case, which had commenced as a civil action, be transferred to the Land Court. The appellant, as plaintiff, had claimed the sum of $8,820 from the defendants for allegedly smashing and damaging a 5000 gallon water tank.

Held:

1. The appellant was not claiming anything which fell within the jurisdiction of the Land Court under section 149 of the Land Act (Cap 132).

2. The claim appeared to be a simple claim for damage to property, namely, movable property on the land and the Magistrates Court was the right venue for the trial of such a matter.

3. An order was made that the case be transferred back to the Magistrates Court at Vava'u to be heard before a different magistrate.

Statute considered:

Land Act (Cap 132)

Counsel for the appellant : Mr Piukala
Counsel for the respondents : Mr Vaipula

Judgment

This appeal concerns a ruling in the Magistrates Court (Vava'u) concerning civil case no 39/07 in which the Magistrate made an order on 10-10-07 concerning a claim for $8,820 as compensation for alleged damage to a water tank-together with associated legal and court costs. The Magistrate ordered the case be heard by the Land Court. The appellant appeals that ruling, and asks for trial in the lower court.

The Magistrate made his ruling at Neiafua Vava'u on l0th October 2007- perusing the Court records the Magistrate said in his ruling:

This is the right Court for this case, but because it has been shown to me that there were disputes between the Prosecutor and the Defendant on the Land where the 5000 gallon water tank is located, then this case will be transferred to the Land Court and this trial will be adjourned until the trial date is fixed.

Notice of Appeal against the Magistrates Ruling was signed on 18th October 2007 by Manu Tu'ipulotu for the appellant; and served on the Supreme Court. The substantive hearing of the matter is set for l0-10-08.

The Three Grounds of Appeal

1. The wise Magistrate was wrong when he adjourned this case until the land Court started off; to finalise the disputes on the land.

2. The issue of the Civil Case No 39/07 between the Prosecutor Manu Tu'ipulotu and Richard Mortimer was that $8,820.00 was ordered for the defendants for smashing and damaging the 5000 gallon water tank. On the 10/10/07 the lawyers for the accused submitted their legal suggestions, Section 149 of the land Court in which the Land Court would hear the case.

3. The appellant believed that the Magistrate was wrong when he adjourned his charges until it was known of whether the prosecutor or the defendant had the right over land.

4. The issue of the prosecutors charge in this case is that the defendants smashed and damaged a 5000 gallon of water tank, in which the prosecutor is claiming the replacement amount of 5000 gallon water tank.

5. He is not claiming something about the land or anything shown on section 149 of the Land Act, which might cause the adjournment of the trial. There is also a complaint lodged with the police of damage.

The Appellant Asks for a Ruling

1. For this appeal Case to be heard in Nuku'alofa at any convenient time for the Supreme Court.

2. Alternatively the Appellants humbly submit that this appeal can be dealt with by documents/productions in court and without a hearing.

3. Any further orders that this Honourable court deem just.

Ruling

The court heard oral arguments and received written submissions in this case and in view of the Circuit Court work load it reserved Judgment to be delivered in Nuku'alofa on a date to be determined but not later than 30 days from the date of hearing.

I have considered all of the submissions both oral and written. In my view this case is an extremely simple case on paper and in my view this is a straight forward civil claim for damage to property: that is to say it is a claim for compensation for alleged damage to a 5,000 gallon water tank not land.

It will be for the trial court to determine the true ownership of the property (the water tank) upon hearing all the evidence- then- it will be for the court to consider awarding compensation for any damage caused- this can only be achieved by a fair trial-upon hearing all the facts and all of the evidence from both sides and within a reasonable time period.

I agree with the Appellant- this claim has nothing to do-with the land court; it appears that this is a simple claim for damage to property albeit moveable property on land, accordingly the Appeal is allowed. The Magistrate's court is the right venue for trial of this matter.

ORDER--The Vava'u Magistrates Court is to hear this case at its earliest convenience- and preferably the hearing should take place before a different Magistrate.