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EM Jones Industries Ltd v Tofoa [2008] TongaLawRp 59; [2008] Tonga LR 146 (1 January 2008)

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

AM 8/2008

EM Jones Industries Ltd

v

Tofoa

Shuster J
2008

Appeal – Magistrate erred in law or fact and breached his duty – unmeritorious appeal – dismissed

Saimone Tofoa appealed against a judgment in the Magistrates' Court given on 27 February 2008 awarding the plaintiff, EM Jones Industries Ltd, the full amount claimed of $2572.95 together with interest to be paid within two weeks failing which the plaintiff could take possession of the residence of the defendant. It would appear from the judgment that the grounds of appeal included the allegation that the magistrate erred in law or in fact and that he breached his duty as a magistrate. In his response to the plaintiff's claim in the magistrate's court, counsel for the defendant had alleged that the plaintiff's claim was "a method of being dirty, untrue and threatening".

Held:

1. The tone of the paragraph in the pleading which included the words "dirty, untrue and threatening" was unprofessional and that type of terminology should not be used in legal documents in any court without proper foundation.

2. There was nothing to suggest that the magistrate had erred either in the law or in fact nor had he breached his duty as a magistrate. By carrying out a planned visit to the locus in quo the magistrate had went far beyond what most magistrates are prepared to do. The appeal was regarded as unmeritorious and the appellant was ordered to pay costs.

Judgment

No Appearance by the Appellant in this case his counsel did appear.

The Appellant in this case appeals to the Supreme Court against a Ruling of the Magistrate's Court in Fasi, Nuku'alofa. The Appellant was summoned to appear in the Magistrates Court on 1st October 2007, and appeals against a decision of the Learned Magistrate exercising civil jurisdiction in an action for the recovery of a debt between the parties:

• Jones Industries Ltd of Tofa, and Saimone Molitika of Sopu There was a counter claim filed in the lower court. Judgment was given for the Plaintiff on 27th February 2008. The Appellant appeals that decision to the Supreme Court.

The Civil Summons in the Magistrate's Court reads:

• The Plaintiff claims from you $2,572.95 due to you purchasing goods from the store of the plaintiff and there was a contract between the two of you, on the 29th June 2007 which stated that this purchase is insured by the house and other goods. It has thus been understood that the goods insuring the loan are not your goods. The Plaintiff also claims the 10% interest of every year since 29th June 2007 as well as the $2,572.95. The Plaintiff is also claiming the house of the Defendant since he cannot pay the $2,539.00 plus the interest. Also claiming the expenses for the lawyer and the Court with a total value of $750.00

Findings

It is evident studying the case papers; the Magistrate took a considerable time and put a great deal of effort to dealing with the case and delivering his judgment. The Magistrate also quite unusually carried out a site visit to the location (or locus in quo) where he saw materials purchased on credit from the Plaintiffs company, and which were used in a development by the Appellant in his case.

The Magistrate recorded the oral evidence which has been transcribed into eleven pages for use by the Supreme Court. I have also had sight of all exhibits in this case. In reviewing the court documents I have no doubt the Magistrate considered all the relevant facts and issues, in this a very straightforward case.

On 1st October 2007 a response was made to the Plaintiff's Claim. The response was signed by Mr. Edwards, who was at that time acting for the defendant. Surprisingly, Mr. Edwards did not appear at the trial of this matter in the lower court, but he advises the Appellant on his Appeal to the Supreme Court, so accordingly his name appears on the Supreme Court's record.

Mr Edward's written response to the Plaintiffs Claim reads as follows.

1. The claim done by the Plaintiff is a method of being dirty, untrue and threatening.

2. There was a debt to the Plaintiff, and there was an agreement with the Plaintiff to repay the debt in partial stages and signed insurance to it.

3. When there were differences in the relationship between the Plaintiff and the Defendant concerning the differences evident on the summons for Civil case No 116-07 the Plaintiff has brought charges against the Defendant concerning the payment of debts which there was an agreement.

4. The defend requests to order the Plaintiff to uphold the stay with the contract to repay in partial stages the debt.

5. The Defendant is claiming payment for the lawyer and the court valued at $500.

I should like to say something about the tone of the first paragraph in response to the Plaintiff's Claim of 1st October 2007 and used by Mr Edwards. It is clearly unprofessional. I do not wish to see this type of terminology used in legal documents in any court in the Kingdom again; phrased or couched in terms like this; unless the court is provided with relevant and admissible evidence for use as a proper foundation to make this "type "of serious assertion. I find the paragraph is most unprofessional and somewhat degrading.

I also need to remind Counsel that every person has a right to exercise his or her legal right to go to court to obtain judgment at any time using the court procedures. This is exactly what the Plaintiff did in this case. The Magistrate considered this particular case in a full trial and eventually found for the Plaintiff he also dismissed the Appellants Counterclaim which he is entitled to do.

At the end of his judgment the Magistrate recorded the following-

• In relation to the principles and elements stated earlier in the terms despite the defendant alleging the Plaintiff breached the terms of the contract in supplying 3'11" foot wire, but had ordered 4 foot wire. The Court believed no debt arose. The debt arose from the Defendant having no knowledge of TCC's requirement and followed it.

• Thereby the Counterclaim is denied.

• But the Claim by the Plaintiff is granted. At the same time the court went and inspected the fence at 'Atele, no tape was taken. I then went with the driver and the clerk Ma'afu Sefokuli, they measure the width of the diamond fence, on the fence directed by the defendant. There was no place that the diamond fence was lower than 4 foot. This is despite Viliami alleging that the folding of the fence will decrease it from 4 foot to 3'11" it still falls within 4 foot. Thus this supports my conclusion that the debt hadn't resulted from the width of the fence as stated by the defendants counterclaim.

Thus the sentence is as follows.

• 1) the Counter-Claim is denied

• 2) The claim for $2,572.95 and the interest of 10% - $64.32 to be paid within 2 weeks, if not EM Jones Limited shall take possession of the residential house, because this was the contract.

• 3) The due amount of LF + CF $750.00 to be paid to Fakahua.

• I have carefully considered the merits of this Appeal (if any) and as I said before I have studied all the papers and documents submitted with the file.

• I conclude the Magistrate did not err, either in law, or when he applied the facts to the law and came to his conclusion.

• I consider he came to a just and equitable conclusion on both the oral and documentary facts presented to him.

• I can find no evidence whatsoever that the Magistrate breached his duty as a Magistrate as alleged as a ground of appeal.

• In fact I am of the view this particular Magistrate went far beyond what most Magistrates do, by carrying out a planned visit to the locus in quo.

• The same conclusion would be made by any other competent court.

• It is clear the evidence reveals there was a written agreement between both parties and it was in existence.

• The written agreement reveals the existence of a legal Debt which had to be repaid under the terms of the agreement.

• The conditions for the repayment of the full sum have never been fulfilled.

• Because the conditions for repayment have not been met the Plaintiff is entitled to pursue his claim in court

• He did so, and the Appellant lost.

Reading between the lines I conclude the appellant is most probably more concerned that he pledged his residence as security for his loan and; because of the Magistrates ruling, he lost his residence as ordered by the Lower Court's.

Let me make it perfectly clear if a person puts up property as security, or as in this case, as insurance for a debt, and, if he does not pay his loan then he risks losing same.

Further if he pledges property and that property does not legally belong to him then, that act itself is tantamount to fraud. Allegations of Fraud may void the contract, and even lead to the preferring of criminal charges and arrest and or imprisonment dependent upon the circumstances.

• Accordingly, this Appeal is dismissed.

• In my view it is an unmeritorious appeal.

• I order the Appellant to pay the costs of today's hearing, to be taxed by the Chief Registrar of the Supreme Court.

• I also order a copy of this my Judgment be passed to the Crown Law Office, for information and for such action as they might deem necessary.