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Allison v Tu'ipulotu [2009] TongaLawRp 20; [2009] Tonga LR 224 (7 May 2009)

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

AM 08/2009

Allison anors

v

Tu'ipulotu

Andrew J
5 May 2009; 7 May 2009

Civil claim – damage to water tank – found plaintiff had no property in tank – could not bring claim

Magistrates' Court – appeal against decision – Magistrate erred in law – decision quashed

The plaintiff (respondent) made a claim of $8,820 for compensation for alleged damage to a water tank. The Magistrate heard the matter and found that the water tank was damaged and smashed by the defendants on or about 18th September 2007. He found that the plaintiff built the tank for another person, Mr Mortimer. The Magistrate then held that because the plaintiff looked after the water tank, he was in actual possession of the tank which entitled him to bring the claim as the plaintiff. He found that the plaintiff had not been paid in full for constructing the tank as contractor and was still owed $2,800 for work done. The Magistrate found that the smashing of the tank meant that the plaintiff had lost his interest and title in the property. The Magistrate found that part of the claim should succeed and ordered that the defendants were to pay compensation to the plaintiff, Mr Manu Tu'ipulotu, in the sum of $2,800 together with the 10% which is $280 amounting to a total of $3,080 plus costs. The defendants appealed the Magistrate's decision.

Held:

1. It could not be said that the plaintiff had any property in the water tank. He was only a contractor who built it for another person. The plaintiff had no property in the water tank therefore he could not bring a claim against the defendants for any damage they may have carried out. If the plaintiff was not paid the full amount for its construction by the owner then the claim should be against the owner.

2. The Court found that neither the owner of the water tank nor the plaintiff had any right to the land and therefore they had no right to build the tank there.

3. The appeal was allowed and the decision of the Magistrates Court was quashed.

Counsel for the appellants : Mr Vaipulu
Counsel for the respondent : Mr Piukala

Judgment

The background of this matter is that there was a civil claim in the sum of $8,820.00 for compensation for alleged damage to a water tank. The matter came before the Magistrates Court and a ruling followed that the matter should preferably be determined by the Land Court.

That decision was appealed to the Supreme Court and the appeal was upheld, it being found that this was a civil claim and had nothing to do with the Land Court. There was an order that the matter proceed in the Magistrates Court, Civil Jurisdiction, Before another Magistrate.

The matter duly came before the Magistrate Court on the 11th of February, 2009. There was an additional defendant that is Mr. Gordon Allison. The Court found that part of the claim should succeed and ordered that the defendants were to pay compensation to the plaintiff, Mr. Manu Tu'ipulotu, in the sum of $2,800 together with the 10% which is $280 amounting to a total of $3,080.00 plus costs.

That decision is now under appeal. The civil case was CV2/09.

The learned Magistrate found that the water tank was damaged and smashed by the defendants on or about 18th September 2007. He found that the tank was the property of one RICHARD MORTIMER and was not the property of the plaintiff. He apparently maintained the water tank and was also apparently a contractor who built the tank for one Peau Halahingano. The Magistrate also found that this person had initiated the building of the tank for Mr. Mortimer. They ultimately found that the plaintiff built the tank for Mr. Mortimer. He found:

"True ownership of the water tank was Richard Mortimer (if there was such a person)."

The Magistrate then held that because the plaintiff looked after the water tank meant that he was in actual possession of the tank which entitled him to bring this claim as the plaintiff. He found that the plaintiff had not been paid in full for constructing the tank as contractor and was still owed $2,800 for work done. The Magistrate found that the smashing of the tank meant that the plaintiff had lost his interest and title in the property.

I cannot accept these findings as correct in law. It cannot be said that the (so called) plaintiff had any property in the water tank. He was only a contractor who built it for another person. The Magistrate had already found that the true ownership of the tank was Richard Mortimer. The fact that MANU had built the tank as a contractor and later maintained it did not give him any property in the tank, He clearly found that it was not the water tank of the plaintiff.

In my view the Magistrate was clearly in error. If the plaintiff had no property in the water tank, if he is not the owner he cannot have a claim against the defendants for any damage they may have carried out. If he has not been paid the full amount for its construction by the owner, Mr. Mortimer (and there is some dispute about this) his claim should be against Mr. Mortimer.

For that reason alone the appeal should be allowed and the decision of the Magistrate must be quashed.

There are further reasons for quashing the decision. The defence had claimed that the land on which the tank had been built was not the land of Richard Mortimer nor of Manu Tu'ipulotu (the plaintiff) and there was no right to erect a water tank on the land.

The learned Magistrate found that he could not rule on the question of who had the right to the land and he could not rule if the defendants had rights to the land or if the plaintiffs had any rights. I think that that needed to be resolved. As a consequence the defendants lost their right to bring a legitimate defence to the claim. I think it emerges from the evidence that clearly Mr. Mortimer and Manu Tu'ipulotu had no right to the land and had no right to build the tank there.

The land is leased to ESCAPE TONGA LIMITED (Mr. Gordon Allison) until 2028. That is Deed of Lease 7659 and they have the rights over this land. For all of these reasons I make the following order:

The appeal is allowed and the decision of the Magistrates Court dated the 25th February 2009 is quashed in all respects.

Costs are awarded to the appellants.