IN THE SUPREME COURT OF TONGA

Piliu

v

Satini anor

Supreme Court, Nuku'alofa
Ford J
CV 613/2001

16 April, 14 and 20 May 2004; 17 June 2004

Tort – trespass – actionable per se – no damage caused – nominal damages

The plaintiff, 68-year-old 'Olive Piliu, held a widow's life interest in a tax allotment at Pea in the estate of Lavaka. She alleged that while she was in New Zealand in 2000/2001 the defendants trespassed and, without her authority, grew crops on her land and caused damage. She claimed damages against the defendants totalling $3000 together with costs. The second defendant "Savou" filed a statement of defence admitting that he ploughed and grew a crop of taro on the allotment in question but he maintained that the first defendant, "Ma'afu", the plaintiff's nephew, represented that he had authority from the plaintiff to allow him (Savou) to use the allotment for a rental of $1,000 per year. The first defendant, Ma'afu, agreed with the second defendant's contentions.

Held:

1. An action in trespass lay whenever a person unlawfully entered on land in the possession of another. The emphasis of the tort was on the physical interference with possession of land as distinct from the protection of ownership. Trespass was actionable per se. It was a good defence if a defendant could prove that he entered upon the land in the exercise of some kind of legal right.

2. The Court found that Ma'afu had a licence from 'Olive to use the land himself for 12 months at the rental figure of $1,000, but Ma'afu did not have authority from 'Olive to let Savou use the allotment. Thus, to that extent, he exceeded the terms of his licence in allowing Savou to use the allotment in the way that he did.

3. When a person who held possession of land pursuant to a licence abused the authority vested in him and used the land in a way that exceeded the terms of that licence, he became a trespasser. Therefore the plaintiff succeeded in her claim against the first defendant, Ma'afu. 

4. The second defendant, Savou, acted reasonably and in good faith throughout. He genuinely believed, on reasonable grounds, that he had lawful authority from the plaintiff to have possession of the land for the growing of his crop of taros. He was therefore not a trespasser and the plaintiff failed in her claim against him.

5. Where a defendant committed the tort of trespass which was actionable per se, then, even though there was no proof of actual damage to the property, the plaintiff was still entitled to an award of nominal damages to mark the tort. The Court awarded the plaintiff nominal damages against the first defendant in the sum of $10 but declined to make any award of costs.

Case considered:
Dehn v Attorney-General [1988] 2 NZLR 564

Counsel for plaintiff: Mr Foliaki
First defendant in person
Counsel for second defendant: Mr 'Etika

Judgment

The plaintiff, 68-year-old 'Olive Piliu, holds a widow's life interest in a tax allotment at Pea in the estate of Lavaka. She alleges that while she was in New Zealand in 2000/2001 the defendants trespassed and, without her authority, grew crops on her land causing damage. She claims damages against the defendants totalling $3000.00 together with costs.

The second defendant "Savou" filed a statement of defence admitting that he ploughed and grew a crop of taro on the allotment in question but he maintained that the first defendant, "Ma'afu", who is the plaintiff's nephew, represented that he had authority from the plaintiff to allow him (Savou) to use the allotment for a rental of $1,000 per year.

For his part, the first defendant, Ma'afu, who did not have legal counsel (nor did he file a statement of defence but no objection was taken on that ground) agreed with the second defendant's contentions.

The plaintiff's evidence was disjointed and, at times, very difficult to follow. Even allowing for her age, 'Olive seemed to have no concept of dates and times. The events she described were, in the main, related to other significant events in her life but, even with them, she seemed unable to pinpoint dates and times. The plaintiffs' whole case, in fact, seemed to be a complete bundle of confusion until after evidence had been given by the second witness, her niece, Ngaluafe.

'Olive told the court that she did not recall when her husband died but, when pressed, she thought that it might have been about five years ago. She produced a "Certificate of Statutory Landholding" issued by the Land Registration Officer on 3.10.2001 confirming her interest in the allotment in question. Whether she had sufficient legal interest in the land prior to that date for bringing this action is not an issue that was raised before me. In the absence, therefore, of any objection from the defendants, I propose to proceed on the basis that the plaintiff, at all material times, did have sufficient interest in the land to maintain this proceeding. 

'Olive could not recall when she left for New Zealand but the best estimate I can make from her evidence is that it was probably around the middle of the year 2000. Earlier in that year she had advertised over the radio that her allotment was available for farming at a rental of $3,000 per year. Nothing initially came out of that advertising.

'Olive's niece, Ngaluafe, told the court that before her aunty 'Olive left for New Zealand she gave her the allotment at Pea to look after. She said that the instructions she received from 'Olive at the time were to tell anyone who was interested in the allotment that the rental would be $3,000 per year but she would first have to contact 'Olive in New Zealand and obtain approval to any arrangement.

Ngaluafe recalled that sometime after 'Olive had left for New Zealand, the second defendant (who I shall continue to refer to as "Savou", as was the case during the hearing) called to see her about the allotment. He told her that he had heard about the advertisement over the radio. He also said that a man called 'Otani Piliu (who is apparently 'Olive's brother or brother-in-law) had told him that the last person the allotment had been left in the care of was the first defendant, Ma'afu.

Ngaluafe's evidence was unsatisfactory in the sense that, as I understood it, she made it sound as though Savou had only made the one visit to her home and she was not asked, nor did she reveal, exactly how matters had been left with Savou. It transpired that Savou had, in fact, made more than one visit. Rather surprisingly, however, Ngaluafe was not cross examined in relation to any of Savou's visits to her home. 

It was, nevertheless, put to Ngaluafe in cross-examination that 'Olive had not said anything in her evidence about having given instructions to her of any kind in relation to the allotment. Ngaluafe responded, "the authority she gave me was to look after it, for example, we could go and use the coconuts."

Ngaluafe recounted how she learned that someone had been using 'Olive's allotment. She told the court that one day in 2001 she told her son to go to the allotment and collect some breadfruit and coconuts and he came back and told her that there were crops growing on the land. She said that she then made contact with 'Olive in New Zealand and passed on that information. 'Olive told her that she did not know anything about it but she would return from New Zealand to investigate. In cross-examination Ngaluafe said that 'Olive returned from New Zealand a few months later and she went out to the allotment the following day.

'Olive's evidence on this aspect of the case was quite different. She said nothing about receiving a telephone call from Ngaluafe when she was in New Zealand. 'Olive's evidence was that after she returned from New Zealand she was back in Tonga "for some time" before she was told that someone had planted crops on her allotment.

The only other witness called on behalf of the plaintiff was a Mr Finau Hufanga who gave evidence about a rental arrangement he later entered into with the plaintiff in respect of the land in question, on behalf of a Youth Group from Pea but his evidence did not shed any light on the issues in contention in this case.

There was a break in the evidence at one point of approximately four weeks and when the hearing resumed Mr 'Etika was overseas on a visit to the USA. He had, however, made it clear before he left that he was happy for the hearing to proceed in his absence. He told the court that his client, Savou, would be giving evidence on his own behalf. 

After taking the oath, 59-year-old Savou explained to the court in a rather apologetic way that he had suffered a stroke but he did not believe that his memory had been affected. That transpired to be the case. Savou gave his evidence in a careful, coherent manner, which was in marked contrast to the evidence given by the plaintiff.

Savou explained that he had a tax allotment at Kahoua and from time to time he would rent other allotments around Tongatapu for his farming activities. He said that in the year 2000, sometime between March and May, a person he knew only as Tevita had stopped him one day and told him about an advertisement he had heard over the radio to the effect that there was an allotment at Pea available.

Savou did nothing at the time but later in the year when he wanted more land to farm he approached Tevita and inquired about the land at Pea he had heard advertised. Tevita told him to speak to 'Otani Piliu at Tofoa who, he explained, was 'Olive's brother or brother-in-law.

Savou said that he duly spoke to 'Otani who in turn told him to go to another house at Tofoa, close to the hospital, where he thought that 'Olive was staying with relatives. The house turned out to be the home of Ngaluafe and her husband, 'Isope. They explained to him that 'Olive was in New Zealand but they confirmed that the allotment had been advertised and Ngaluafe undertook to contact her aunt about the matter. They told Savou to call again the next day.

The following day, Savou returned to the house in Tofoa and spoke again to Ngaluafe and 'Isope. They told him that they had not been able to make any contact with 'Olive but they said that they would keep trying and he was asked to call back.

Savou said that he returned again the next day but the couple, were not home. On that occasion he spoke to their daughter who told him to go to where 'Isope worked. He asked where it was and she told him that her father worked for the "Five Star" company. 

Savou told the court that he then called at Five Star and spoke to 'Isope who was sitting on a chair outside on a verandah. 'Isope told him that he should go to a man at Liahona called Ma'afu Satini (the first defendant) who was 'Olive's nephew. 'Isope told Savou that Ma'afu operated a taxi and he had a daughter teaching at Liahona College. 

Ma'afu was not at home when Savou first called to see him but when he later returned to Liahona, Ma'afu was home and he confirmed that 'Olive was his aunt. He also told him that it was true about the allotment at Pea and Ma'afu suggested that they both should go and look at the land, which they then did.

Savou said that he asked Ma'afu about the rental figure for the allotment and he was told that it was $1000 for one year. He explained that at that stage Ma'afu made the suggestion that they could share the allotment and have 4 acres each for growing crops. Savou indicated that that arrangement was acceptable to him and he asked Ma'afu to make contact with 'Olive in New Zealand and come and tell him if she approved of the arrangement the two men had agreed upon.

After a few days Ma'afu called to see Savou at his home. It was a Sunday. He told Savou that 'Olive approved and she had said that he (Savou) could use the whole of the allotment at the figure of $1,000 which they had agreed upon. Savou said that he was pleased. He then outlined to Ma'afu his plans for the allotment.

First, he said, he would need a chance to clear the land because it was covered in dense grass and bush. His proposal was that he would plough the allotment, leave it for a month and then plough it again and the day that he started planting his taro would be the day that his one year term would commence. Savou paid the $1,000 agreed rental in cash to Ma'afu that same day. 

Savou told the court how he then hired a contractor to carry out the plowing and harrowing of the land. The preparation work cost him $1,200 made up of 30 hours work at $40 per hour. The taro was planted in December 2,000. Savou then looked after the plantation over the following 10 months as the crop grew.

The next development came in about September 2001. Savou said that by then he had harvested some of his crop of taro and one day 'Olive and Ma'afu came and saw him on another allotment he was working on and they had what obviously developed into a heated argument.

Savou said that 'Olive asked him for $3,000 because he had planted on her allotment. He explained to her about the arrangement he had entered into with Ma'afu and told her that he had paid the agreed rental of $1,000 to Ma'afu. He went on to tell 'Olive that if he had known she had wanted $3,000 for the allotment then he would not have used it because, at that rental figure, it would have been too expensive.

As a compromise, Savou put it to 'Olive that if she was to let him have the use of the land for another 12 months then he would pay her $3,000. She refused, however, and insisted on receiving $3,000 immediately.

Savou said that during the argument Ma'afu supported him and told 'Olive that he (Savou) was correct in everything he had said but 'Olive was "hyped up" and she and Ma'afu started arguing between themselves and then they left.

Not long after that meeting, 'Olive had a "no-entry" sign put up on the allotment and she served a lawyer's letter on Savou instructing him to keep off the property. She again returned later and served on him the writ and statement of claim issued by the court on 10 October 2001. Savou said that he did not return to the property again after being served with the writ. At that stage, he had harvested only a small part of the taro crop. He speculated that the remainder of the crop would have been stolen and used by other people.

In Mr 'Etika's absence, Savou subpoenaed 'Isope 'Akau'ola. Mr Foliaki objected because he had called 'Isope's wife Ngaluafe as a witness for the plaintiff but I dismissed the objection. Savou then proceeded to lead 'Isope's evidence with commendable skill and restraint.

'Isope admitted that Savou had come to his home twice and they had told him on both occasions that they would keep trying to contact 'Olive in New Zealand but he denied ever having seen Savou at his workplace, Five Star, or having told him to go and see Ma'afu at Liahona. I did not find 'Isope's denials, however, at all convincing and I accept Savou's version of events.

The final witness in the case was the first defendant, Ma'afu. He said that early in 2000 he had taken 'Olive around Nuku'alofa in his taxi trying to find someone who would pay rent and use her allotment during the period she was going to be away in New Zealand. 'Olive had admitted this much when she was cross-examined by Mr 'Etika. They had no success.

Ma'afu said that just before 'Olive left for New Zealand, he went with her to look at the allotment at Pea and on that occasion he asked her to let him have the use of the allotment while she was away so that he could plant tapioca and his family could live on it. He said that 'Olive accepted the proposal. He then asked her how much he should pay her as rent and she told him, $1,000 a year.

Ma'afu then related how Savou had later come to see him inquiring after the allotment. He said that Savou told him that 'Isope had suggested that he should come and talk to him. 

In cross-examination by Mr Foliaki, Ma'afu admitted that he told Savou that he would contact 'Olive in New Zealand but he never did. He explained to the court that he did not think it necessary to have to get 'Olive's approval because he had already made the arrangement regarding the use of the allotment with 'Olive before she had left Tonga. 

I will not traverse Ma'afu's evidence about 'Olive's reaction when she eventually came back from New Zealand and confronted Savou. In general, it mirrored the evidence already given by Savou. He said that 'Olive was swearing and arguing and he, Ma'afu, was extremely upset over her reaction. He kept telling her that he had given Savou permission to use the property for $1,000 a year but she was insisting on getting $3,000 from someone.

That, then, is necessarily a somewhat abbreviated summary of the evidence. I found both defendants credible witnesses and, apart from one qualified reservation, I am satisfied that they were doing their best to recall the various events for the court as accurately as possible.

The reservation I have relates to the arrangement reached between 'Olive and Ma'afu in relation to the use of the allotment when she was in New Zealand. Ma'afu alleged that 'Olive had agreed that he could live on the allotment and grow tapioca for a yearly payment of $1,000. 'Olive in her evidence said that all she had agreed to was that Ma'afu could take any crops still remaining on the allotment for the use of his family.

The difficulty I have with this evidence is that Ma'afu, understandably, because he would not have known of the legal requirement, did not put to 'Olive in cross-examination his proposition and, when he gave evidence, Ma'afu was not cross-examined by 'Olive's counsel on her proposition.

In the absence of such cross-examination it is difficult for the court to determine exactly where the truth of the matter lies but, in general, as I have already indicated, I was not impressed with 'Olive's recollection of events and dates and, for that reason, I prefer Ma'afu's evidence. But, in any event, this particular point is not crucial to my decision.

The plaintiff brings this action in trespass. An action in trespass lies whenever a person unlawfully enters on land in the possession of another. The emphasis of the tort is on the physical interference with possession of land as distinct from the protection of ownership. Trespass is actionable per se. It is a good defence, however, if a defendant can prove that he entered upon the land in the exercise of some kind of legal right.

Accepting as I do, therefore, that Ma'afu had a licence from 'Olive to use the land himself for 12 months at the rental figure of $1,000, Ma'afu did not have authority from 'Olive to let Savou use the allotment. He freely made that admission to the court. Thus, to that extent, he exceeded the terms of his licence in allowing Savou to use the allotment in the way that he did.

When a person holding possession of land pursuant to a licence abuses the authority vested in him and uses the land in a way that exceeds the terms of that licence, he becomes a trespasser. That, is what happened in the present case and the plaintiff, therefore, succeeds in her claim against the first defendant, Ma'afu. 

The position in relation to the second defendant, Savou, is completely different. He, I am satisfied, acted reasonably and in good faith throughout. He genuinely believed, on reasonable grounds, that he had lawful authority from the plaintiff to have possession of the land for the growing of his crop of taros.

Mr Foliaki made the point that the agreement made between Savou and Ma'afu allowing for the use of the allotment at a rental of $1,000 a year was made on a Sunday. He submitted:

"Apparently, such an agreement is unlawful being made on a Sunday and therefore invalid. Accordingly, the second defendant cannot rely on his unlawful agreement in this matter and he cannot be justified as an innocent purchaser or bona fide trespasser."

I find this a rather hesitant and unconvincing submission. I am unsure why counsel uses the word "apparently". I presume that he is referring to clause 6 of the Constitution which states that the Sabbath Day shall be kept holy in Tonga and "any agreement made or witnessed on that day shall be null and void and of no legal effect."

If that is the basis of counsel's submission then it should have been pleaded or at least put to the defendants in cross-examination to enable them to respond. That was not done. The point, in fact, was not raised until counsel's closing submissions in the case. In these circumstances, I am not prepared to make a firm finding on the issue either way but, on the evidence before the court, it is certainly arguable that the agreement was made prior to the meeting on the Sunday.

My conclusion is that the second defendant, Savou, was not a trespasser and, therefore, the plaintiff fails in her claim against him.

When it comes to assessing the damages the plaintiff is entitled to recover as against the first defendant, the general principles are summed up in Halsbury, Vol 45, Para 1403 as follows:

"In an action of trespass, if the plaintiff proves the trespass he is entitled to recover nominal damages, even if he has not suffered any actual loss. If the trespass has caused the plaintiff actual damage, he is entitled to receive such an amount as will compensate him for his loss. Where the defendant has made use of the plaintiff's land, the plaintiff is entitled to receive by way of damages such a sum as should reasonably be paid for that use . . . If the trespass is accompanied by aggravating circumstances which do not allow an award of exemplary damages, the general damages may be increased."

I am satisfied that there were no aggravating circumstances in the present case and I am also satisfied that the land was not damaged in any way. There is no proof of consequential losses of any financial kind. Nevertheless, where a defendant has committed the tort of trespass which is actionable per se, then, even though there is no proof of actual damage to the property, the plaintiff is still entitled to an award of nominal damages to mark the tort -- Dehn v Attorney-General [1988] 2 NZLR 564, 583. In accordance with that principle, I award the plaintiff nominal damages against the first defendant in the sum of $10 but I decline to make any award of costs. 

Whether the plaintiff will now take further action against the first defendant for his admitted breach of contract in failing to pay the agreed rental of $1,000 is a separate issue which falls outside the scope of this proceeding, which is confined to the tort of trespass. 

Accordingly, the plaintiff is awarded damages in the sum of $10 against the first defendant but she fails in her claim against the second defendant, Savou, and the second defendant is awarded costs to be agreed or taxed.