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Fuimaono v Vaingalo [2008] TongaLawRp 17; [2008] Tonga LR 68 (16 April 2008)

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

CV 347/2006

Fuimaono anor

v

Vaingalo

Ford CJ
13, 14 March and 7, 8 April 2008; 16 April 2008

Tort law – damage to growing crops – trespass to land not trespass to goods – claim failed

The plaintiffs were brothers. They claimed $6,140 by way of damages against the defendant in trespass for allegedly wrongfully ploughing up their cassava plantation. The allotment in question at Lapaha was owned by a widow who resided in New Zealand. One of the plaintiffs had obtained permission from the widow to harvest cassava in 2003, 2004 and 2005. In March 2006 the defendant approached the widow inquiring as to whether he could have the use of the land in question to grow a crop of squash pumpkin and she and her son gave permission to the defendant to plough the land and grow a crop of squash pumpkin. The defendant ploughed the allotment in approximately April 2006 in preparation for planting his squash pumpkin. The plaintiffs claimed that in doing so he ploughed the remainder of their cassava crop that had not yet been harvested and that was the basis of their claim for damages. The defendant and his witnesses alleged that at the time of the ploughing the residue of the cassava crop was overmatured and of no value. The plaintiffs claimed that the widow had cheated on them but they elected to pursue their claim against the defendant rather than the widow. At a late stage in the proceedings, counsel for the plaintiffs informed the court that the cause of action was based on trespass to goods rather than trespass to land. An issue arose over whether damage to growing crops could support an action for trespass to goods as distinct from trespass to land.

Held:

1. The widow was entitled to conclude, as she did conclude, that the plaintiffs would have harvested their crop of cassava and vacated the land by around mid-2005 and by the end of 2005, and certainly by March 2006, she and her son would have been entitled to assume that the plaintiffs had abandoned their unharvested cassava crop.

2. The defendant had been able to demonstrate that he entered upon the land and ploughed up the overmatured cassava crop with the express permission of the owner and he had therefore been able to demonstrate a better right to possession than the plaintiffs.