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

Havea v Kingdom of Tonga [2000] TongaLawRp 8; [2000] Tonga LR 31 (31 March 2000)

IN THE SUPREME COURT OF TONGA

Havea

v

Kingdom of Tonga

Supreme Court, Nuku'alofa
Finnigan J
C 1570/98

14, 15, 18 October, 13, 14 December 1999; 31 March 2000

Tort — trespass to land — unlawful conversion — damages

Damages — damages at large — not limited to specific pecuniary loss

The plaintiff (who lived in New Zealand) had been the holder of a tax allotment in Vava'u since 1983. The land shared a common boundary with an allotment held by Sione Tu'i 'Ofa (Sione Tu'i) who had a contract with the defendant (the Ministry of Works) to supply quarried rock for roading. In the course of quarrying the land of Sione Tu'i, the defendant crossed the boundary into the plaintiff's allotment and took away the topsoil and sub-structure. As well, the defendant had stockpiled some of the quarried rock on an adjoining part of the plaintiff's land. In August 1998, as soon as the plaintiff was informed of the situation, he came to Tonga. He was able to negotiate a resolution of his claim with Sione Tu'i which was recorded in writing. The issue of liability of the defendant to the plaintiff was left unresolved. The plaintiff laid a claim in tort against the defendant for damage to his land.

Held:

1. There was clearly a breach by the defendant of a duty of care to the plaintiff, in the course of which it committed the torts of trespass and conversion.

2. Concepts such as market value that assumes a willing but not anxious vendor and purchaser, and free exposure to the market, did not fit readily into Tongan land tenure. However, the concept of highest and best use, defined by the plaintiff's valuer as the most profitable legal use to which a parcel of land may be put, does apply in the Tongan system of land tenure.

3. What was lost in the loss of surface was different and additional to what was lost in the loss of the underlying substance, and each had a different value. The value of the substance that was lost (the rocks) was settled between Sione Tu'i and the plaintiff in their own separate agreement. Nothing remained to be awarded by the Court under the head of conversion of the underlying rock. The damages for the lost surface was $9,526.

4. The loss of amenity was calculated with regard to the market value, the cultural value, the loss of trees, the loss of contour and the change in character. The award for that loss was included in damages at large.

5. Damages at large were assessed in order to show that the damages were not limited to provable specific pecuniary loss. This arose from the affront caused by the torts of trespass to land and unlawful conversion. Damages at large were calculated to be $17,500.

6. The plaintiff was entitled to costs.

Cases considered:

Darbishire v Warran [1963] 1 WLR 1067; [1963] 3 All ER 310 (CA)

Mokofisi v The Kingdom of Tonga (Supreme Court, C 111/88, 13 June 1989, Webster J)

Counsel for plaintiff: Ms Tonga
Counsel for defendant: Mr Cauchi

Judgment

This is a claim in tort by a landholder against the government for damage to his land. The plaintiff says that during 1997 and 1998 people employed by the defendant quarried away part of his land, without consultation and without permission. The total area of his land had been 8 acres and 1 rood, and he claims that the volume of rocks and topsoil removed was 147 meters long, 40 meters wide and 5 meters deep. He claims also that the quarrying destroyed a number of specified trees, and claims compensation for that. For the destruction of those fruit and coconut trees as well as the claimed unlawful trespass, unlawful conversion of the rocks and soil, damage to the natural state of the land and the loss of future cropping use, he claims damages of $170,000. Ms Tonga, counsel for the plaintiff, commented during the hearing that it was not for the volume of rock taken that the plaintiff claims, but the area of land destroyed. The claim rests on evidence of the value of the allotment at its surface. It is not part of the plaintiff's case to claim for restoring the allotment to its original condition.

The Facts

Briefly, the major relevant facts are these. Other matters were mentioned in evidence but may be omitted here as peripheral. The plaintiff lives in New Zealand. The land is in Vava'u. The plaintiff has been the landholder since 1983, but has not made any specific use of the land other than to allow the trees and vegetables on it to grow and he had rented it out for stock grazing at $100 per year. The land shares a common boundary with land owned by Sione Tu'i 'Ofa ("Sione Tu'i"). Sione Tu'i had a contract with the defendant to supply quarried coral rock for roading. In the course of quarrying the land of Sione Tu'i, the defendant crossed the boundary into the plaintiff's land and took away the topsoil and sub-structure to a depth of 5 meters, over an area of 147 meters by 40 meters, i.e. 5,880 square meters. As well, it had stockpiled some of the quarried rock on an adjoining part of his land.

As soon as the plaintiff was told of this he came to Tonga. That was in August 1998. The defendant (the Ministry of Works) stopped the work and the plaintiff visited the land with the Minister of Works, who happened to be in Vava'u. There were meetings, at which the plaintiff and/or his lawyer were present, as was Sione Tu'i. The Ministry had paid the latter for all the quarried coral so far delivered. It was suggested by the Minister and generally agreed that Sione Tu'i would pay to the plaintiff half of what he had received. It is accepted that Sione had been paid $16,000. During their discussions, Sione Tu'i told the plaintiff that they were relatives. The plaintiff accepted that, and resolved to do something to help him. So on 4 September 1998, the day the plaintiff left for New Zealand, the two of them entered a written agreement [exhibit A]. They had agreed that Sione had paid $3,000 to the plaintiff, and would give the plaintiff the remaining stockpiled rock, so that he could sell it and keep the proceeds. In the agreement the plaintiff allowed that Sione had full authority to remove (and sell) stock from the stockpile on the plaintiff's land, and the money was to be given to the plaintiff's family. They agreed that this arrangement extinguished any liability that Sione might have to the plaintiff from the conversion of the plaintiff's coral rock and the damage to the land, and they promised each other to live in harmony. Sione paid the plaintiff another $500, and the plaintiff was satisfied, because he wanted to help Sione's family in their money difficulties.

In addition, the Ministry of Works was anxious to complete about 2 kilometres of partially constructed road. The Minister explained to the plaintiff and his lawyer at a meeting about the problem that early completion of those 2 kilometres was necessary in order to avoid paying penalties to the Asian Development Bank, which was financing the road. The plaintiff agreed to supply the Ministry with 663 loads of coral rock from the stockpile on his land so the 2 kilometres could be completed. He was paid $3,779.10 for these 663 loads before he left for New Zealand on 4 September 1998 [exhibit B].

There were two meetings at which the plaintiff and his lawyer discussed with the Minister and his advisers resolutions of all the issues that had arisen. Any issue of liability of the defendant to the plaintiff was left unresolved after the meetings. A claim was subsequently made, this action was filed, and the claim has been redefined to $170,000, based on the evidence of a valuer about the value of the damage done.

At some point not made clear by the evidence, a part of the remaining allotment was stripped of its topsoil. The evidence does not show who removed it. The valuer who assessed the damage 13 months after the events in issue noticed the removal.

There was a letter produced in evidence that appeared to give authority to the plaintiff's mother to deal with the allotment, and thus allow the quarrying. This letter was in the hands of the defendant, and clearly had been given by the mother. The plaintiff denied knowledge of the letter, and in any event the defendant did not rely on it as a defence. At all times, including during the hearing, it has acknowledged that the incursion onto the plaintiff's land was by mistake.

One final fact is important and needs to be mentioned. The plaintiff intends to retain the damaged allotment and to use the part that remains. He has already used some of it as a quarry and sold out the rocks.

The Issues

Counsel approached the matter first on the basis of liability and second on the basis of quantum. The defendant did not seriously contest liability, and on the evidence had not done so from the start. The main submission of counsel for the defendant about liability is that the agreement with Sione Tu'i was a settlement of all he could claim for the damage caused, and that any claim the plaintiff might have had on the defendant was settled in the meetings. I cannot accept that submission. I find that it was the defendant that did the work that encroached from Sione Tu'i's quarry onto the plaintiff's land, and that the payment by Sione Tu'i was no more than payment from the proceeds of what he had wrongfully received for selling the substance of the plaintiff's land to the defendant. There still remains a liability in the defendant for the encroachment and for the destruction. Nothing in the evidence to show that this liability has been compromised. I find that a case has been made out in liability. There was clearly a breach by the defendant of a duty of care to the plaintiff, in the course of which it committed the torts of trespass and conversion.

I turn to quantum.

The Approach to Valuation