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Re Application by Tonga [2000] TongaLawRp 57; [2000] Tonga LR 143 (9 May 2000)

IN THE LAND COURT OF TONGA

Re Application by Tonga

Land Court, Nuku'alofa
Ward CJ
L 6/2000

9 May 2000; 9 May 2000

Practice and procedure — interim injunction — no writ filed and no undertaking as to damages — court refused

Interim injunction — to prevent burial in particular site — issue should be resolved by Tongan negotiation

The respondent wished to bury the deceased, his uncle, on a particular site because he would then be buried beside his brother. The applicant's objection was that the site was very close to the grave of his parents, there was limited space and the respondent's family was only distantly related. If this burial was to take place there, it would not leave sufficient space for his own family. For that reason, when the respondent asked to use that grave site, the applicant refused and offered him an alternative site. The applicant applied for an interim injunction to prevent the respondent from burying his uncle's body in a grave he had already dug.

Held:

1. Due to urgency there were problems with the application: it was filed before the filing of a writ in the case. It was usual to supply a copy of the proposed writ with the application or at least to indicate the nature of the claim because the order will generally only be made on an undertaking by counsel to file a writ within a period ordered by the court. Also, it was usual for the applicant to give an undertaking as to damages. That was not done and, when the deficiency was pointed out, no step was taken to give one. The Court refused the application.

2. Should the court grant the injunctive relief sought, it would freeze the situation at a very stressful and emotional point. It may not have taken account fully of the customary situation and may lead to future discord and bad feelings. The Court noted that this should be settled by the type of discussion that was part of normal Tongan negotiation so that the funeral could proceed without the complication of a fixed and intrusive order of the Court.

Counsel for applicant: Miss Tupou
Respondent in person 144

Judgment

This is an application for an interim injunction to prevent the respondent from burying his uncle's body in a grave he has already dug in the Takaunove graveyard. The funeral is tomorrow. The respondent wished to bury the deceased on that site because he would then be buried by his brother.

The applicant's objection is that the site is very close to the grave of his parents, there is limited space and the respondent's family is only distantly related. If this burial is to take place there, it will not leave sufficient space for his own family. For that reason, when the respondent asked to use that grave site, he refused and offered him an alternative site.

Despite that refusal, the respondent went ahead and dug the grave.

I ordered that the application be made inter partes and have heard from both parties and counsel for the applicant. In answer to my question as to where the applicant derives the right to control the graveyard, he informed me that, as the oldest member of the family present at the moment in Tonga, he has that right by custom of the area. The respondent agrees that is a correct statement of the customary position.

There are problems with the application.

In view of the urgency of the application, it has been filed before the filing of a writ in the case. Miss Tupou, for the applicant, suggests that that is a proper course. She is correct that urgent applications may be granted in such circumstances. However it is usual to supply a copy of the proposed writ with the application or at least to indicate the nature of the claim because the order will generally only be made on an undertaking by counsel to file a writ within a period ordered by the court. Counsel for the applicant has provided neither and, indeed, cannot specify any cause of action for which she could enter a claim.

Equally, it is usual for the applicant to give an undertaking as to damages. That has not been done and, when the deficiency was pointed out, no step was taken to give one.

Those matters make it necessary for me to refuse the application but there is more to this case than that.

This involves matters of customary practice. There is no dispute about the applicant's right to control the place where the deceased is buried. It is plainly a case for the parties to seek the guidance and possible intervention of someone experienced in such matters.

Should the court grant the injunctive relief sought, it would freeze the situation at a very stressful and emotional point. It may not have taken account fully of the customary situation and led to future discord and bad feelings.

The applicant has offered an alternative site. It seems to me that this could or should be settled by the type of discussion that is part of normal Tongan negotiation so that this funeral can proceed without the complication of a fixed and intrusive order of the court.

The application is refused with no order for costs. 40 50 60 70