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Fiji Islands - Tonga Law Reports - Digest & Index

TONGA LAW REPORTS

1981 – 1988

EDITORS:

Professors DON PATERSON
Department of Law, University of the South Pacific

Hon. Mr Justice Nigel Hampton
(Chief Justice of Tonga)

INDEX OF SUBJECT MATTER	PAGE
ADMIRALTY ACTION
Owner may arrest own vessel     McGregor Consultant and Management Services Ltd. v. Kama	90
AGENCY
Shipping company – not an agent of the Government although its contractual obligations were guaranteed by the Government     Reef Shipping Co. Ltd. v. Prime Minister of Tonga	7
APPEAL
Assessment of credibility of witnesses – not to be reversed by appellate court     Pohahau and Tauelangi v. Kinikini	116
Discretion of court appealed from – not to be reversed unless exercised on wrong principles or on irrelevant considerations or failure to consider relevant consideration     Pohahau and Tauelangi v. Kinikini	116
ARMS AND AMMUNITION
Importation – what constitutes importation of arms     Police Department v. Trumer	43
Concealment of arms – what constitutes concealment of arms     Police Department v. Trumer	43
ASSOCIATIONS
Companies – see separate listing Voluntary association – breaches of rules – adultery not necessarily a disqualification for office of President of a religious association     Latu and Ors v. Fonua and Ors	53
Rule of voluntary association authorising expulsion of member seeking to investigate offers of association contrary to natural justice and of no effect     Latu and ors v. Fonua and Ors	53
BAILMENT
Duty of care of bailee – onus of proof on bailee to show that duty of care complied with     Polynesian Airlines Ltd. v. Moin	61
CIVIL LAW ACT
Application in Tonga of English statutes:  Guardianship of Minors Act 1971, England     Muller v. Muller	107
Judicature Act 1875, England     Roberts v. Bank of British Columbia	119
Law Reform (Miscellaneous Provisions) Act 1934, England     Teta Ltd. v. Ullrich Exports Ltd	127
Rules of Supreme Court of Judicature, England     Roberts v. Bank of British Columbia	119
CIVIL PROCEDURE
Interrogatories – jurisdiction of Supreme Court to issue     Roberts v. Bank of British Columbia	119
Judgment – interest on amount claimed may be awarded     Teta Ltd. v. Ullrich Exports Ltd	127
COMPANY
Liquidation – proof of debt – where there is a voluminous mass of evidence it is correct for a court to adopt a broad overall approach to the assessment of evidence     O G Sanft Ltd. v. Tonga Tourist and Development Co. Ltd.	17
CONFLICT OF LAWS
Court entitled to assume that law of Tonga is the same as that of a foreign country unless the contrary is proved     McGregor Consultant and Management Services Ltd v. Kama	90
Matters of evidence and procedure to be determined by lex fori     McGregor Consultant and Management Services Ltd. v. Kama	90
CONSTITUTION
Clause 111 – not inconsistent with s.76 (e) Land Act     Fifita v. Minister of Lands and Huahulu	65
CONTRACTS
Arrears of rent owing under contract must be specifically pleased as special damages     McGregor Consultant and Management Services Ltd. v. Kama	90
Contract Act not applicable to contract made by company incorporated in Tonga     O G Sanft Ltd v. Tonga Tourist Development Co. Ltd     Teta Ltd. v. Ullrich Exports Ltd.	17 127
Contract not applicable to contract made between parties who are not Tongans     Gabrielli v. Halsie, Mayer and Mataele	40
Deed of guarantee of obligations under a contract did not include arbitration award     Reef Shipping Co. Ltd. v. Prime Minister of Tonga	7
Deed of guarantee of obligation under a contract does not extend to the contract which have not been consented to by the guarantor.     Reef Shipping Co. Ltd. v. Prime Minister of Tonga	7
Party to contract alleging that other party intended to repudiate the contract must produce corroborating evidence     Gabrielli v. Halsie, Mayor and Mataolo	40
CUSTODY OF CHILDREN
Principles applicable upon divorce of parents     Muller v. Muller	107
DIVORCE
Discretion of court to refuse decree not to be reversed on appeal unless exercised on wrong principles     Pohahau and Tauelangi v. Kinikini	116
Discretion of court to refuse decree should be exercised in favour of petitioner where marriage has clearly ended     Tangimana v. Makoni	121
Separation for 5 years or more – only available as ground for divorce if both parties lack intention to resume cohabitation     Ofa-ki-Mala’e’aloa v. Fiula	111
EQUITY
Principles of equity to be applied by Land Court where not inconsistent with Constitution or statute     O G Sanft and Sons v. Tonga Tourist and Development Co. Ltd., Hamilton and Minister of Lands	26
ESTOPPEL
Failure of predecessors in title to challenge unlawful reduction of allotment does not bind persons entitled to succeed     Minister of Lands, Ilavalu and Halaevalu v. Ilavalu and Ilavalu	1
EVIDENCE
Inadmissible evidence – if a party considers evidence is inadmissible that party should make objection and obtain a ruling from the court which can, if necessary, be reviewed on appeal     O G Sanft Ltd v. Tonga Tourist and Development Co. Ltd.	17
GUARANTEE
Deed of guarantee of performance of obligations under contract does not include arbitration award     Reef Shipping Co. Ltd. v. Prime Minister of Tonga	7
Deed of guarantee of performance of obligations under contract does not extend to include obligations arising under subsequent material variations to the contract which have not been consented to by the guarantor     Reef Shipping Co. Ltd. v. Prime Minister of Tonga	7
IMPORT
Firearms – what constitutes importation of firearms     Police Department v. Trumer	43
INTERROGATORIES
Jurisdiction of Supreme Court to issue      Roberts v. Bank of British Columbia	119
JUDGMENT
Interest on amount claimed may be awarded     Teta Ltd. v. Ullrich Exports Ltd	127
Privy Council not bound by its own decisions     Ponitini v. Fale, Kalanivalu – Fotofili, Minister of Lands	97
LAND
Allotment holder estopped from evicting person in occupation by reason of promise made by previous holder     Veikuna v. Toa	138
Application for grant – must be considered by Minister     Taufa v. Vilingia, Tupouto’a and Minister of Lands	85
Application for grant – not required to be made to Minister personally     Tauelangi and Minister of Lands v. Tauelangi	123
Application for succession if made later than 12 months after death of previous holder should not be considered     Taufa v. Vilingia, Tupouto’a and Minister of Lands	85
Cancellation of grant by Minister on the ground of Minister’s lack of awareness of true facts     Fosita v. Tu’ineau, Hon. Fielakepa, Minister of Lands	105
Cancellation of registration of grant on the ground that Minister’s decision was made on wrong principles because of withholding of important facts from Minister     Veas and Fotofili v. Finau	131
Cancellation of grant by Minister on ground that Minister’s decision was based upon incorrect understanding of facts     Tauelangi and Minister of Lands v. Tauelangi	123
Consent by estate holder to allotment – withdrawal of consent must be communicated to Minister of Lands     Fotofili v. Fua	101
Estoppel – failure of predecessors in title to challenge unlawful reduction of allotment does not bind person entitled to succeed    Minister of Lands, Ilavalu and Halaevalu v. Ilavalu	1
Estoppel – holder of allotment estopped from evicting occupier consented to by previous holder     Veikune v. Toa	138
Excessive size – allotment exceeding size permitted by Land Act 1927 was not unlawful if held prior to 1927 and may be succeeded to in its entirely after 1927.     Minister of Lands, Ilavalu and Halaevalu v. Ilavalu and Ilavalu	1
Excessive size – only surplus void, not entire grant     Ponitini v. Fale, Kalanivalu-Fotofili, Minister of Lands	97
Further grants of additional land to allotments only authorised by amendment to s.7 Land Act in 1955     Ongosia v. Tu’inukuafe and Minister of Lands	113
Grant of allotment – after 1948 cannot be made verbally     Ongosia v. Tu’inukuafe and Minister of Lands	113
Grant of allotment – residence of grantee not necessary     Kaufusi v. Taunaholo	70
Grant of allotment – undisputed occupation and cultivation is evidence of grant     Latu v. Moala, Kalanivalu and Minister of Lands	134
Jurisdiction of Land Court and Privy Council to order registration of grant     Kaufusi v. Taunaholo     Tauelangi and Minister of Lands v. Tauelangi	70 123
Owner of land who permits another person to spend money in the development of the land in reliance upon the grant of an interest on the land by the owner cannot later claim that interest is not a good one     O G Sanft and Sons v. Tonga Tourist and Development Co. Ltd., Hamilton and Minister of Lands	26
Ownership – proof of ownership – registration not necessary or conclusive, nor lengthy occupation, nor endorsement of name on plan     Ongosia v. Tu’inukuafe and Minister of Lands	113
Ownership – proof of ownership – undisputed occupation and cancellation is evidence of grant     Latu v. Moala, Kalanivalu and Minister of Lands	134
Recovery of possession of allotment – proceedings must be brought in accordance with procedure prescribed by Part IV, Div. iii Land Act     Fotofili v. Fua	101
Renewal of lease – lessee must serve on estate holder written request for renewal in accordance with S.36 (i) Land Act     Nuku v. Church of Jesus Christ of Latter Day Saints and Minister of Lands	78
Rights of succession of tax allotment – younger sons of deceased holder’s brother not entitled     Fifita v. Minister of Lands and Huahulu	65
Surrender – proceedings barred by time limitation     Motuliki v. Namoa Motuliki and Minister of Lands	141
Subdivision of allotment of excessive size – should not be ordered in respect of allotment granted before coming into force of Land Act i.e. 23 August 1927     Latu v. Moala, Kalanivalu and Minister of Lands	134
Surrender of land – prescribed conditions for surrender must be complied with     Motuliki v. Namoa Motuliki and Minister of Lands	141
Surrender of land – waiver by heir of rights of succession     Kaufusi v. Taunaholo	70
LEASE
Renewal – lessee must serve written request for renewal on estate holder in accordance with S. 36 (i) Land Act     Nuku v. Church of Jesus Christ of Latter Day Saints and Minister of Lands	78
LIMITATION OF ACTION
Time does not run in land cases during minority of plaintiff     Motuliki v. Namoa, Motuliki and Minister of Lands	141
Time runs from the time a right to bring the proceedings accrued to the person through whom the plaintiff claims     Motuliki v. Namoa, Motuliki and Minister of Lands	141
PIGS
May be shot if found at large on road or public property, even although they have subsequently entered private property     Pelesikoti, Minister of Police and Government of Tonga v. Tavake	74
POLICE
Civil liability – police liable in negligence if they incorrectly inform driver of vehicle that vehicle cannot be driven     Soakai v. Taulua, Minister of Police and Government of Tonga	46
Civil liability, Police liable if they slap arrested person – Officer in charge of police station – S.22 Police Act – officer who is in charge of that part of police station where routine police work connected with the public is carried on     Soakai v. Taulua, Minister of Police and Government of Tonga	46
PRACTICE
Arrears of rent under a lease must be specifically pleaded as special damages     McGregor Consultant and Management Services Ltd. v. Kama	90
PRIVY COUNCIL
Not bound by its previous decisions     Ponitini v. Fale, Kalanivalu-Fotofili, Minister of Lands	97
REGISTRATION OF INTEREST IN LAND
Cancellation registration if based on wrong principles     Vea and Fotofili v. Finau	131
Cancellation of registration if based on inaccurate understanding of facts     Fosita v. Tu’ineau, Hon. Fielakepa, Minister of Lands     Tauelangi and Minister of Lands v. Tauelangi     Vea and Fotofili v. Finau	105 123 131
Cancellation of registration if application to succeed made more than 12 months after death of previous holder     Taufa v. Vilingia, Tupouto’a, Minister of Lands	85
Registration not necessary for, or conclusive of, title to land     Ongosia v. Tu’inukuafe and Minister of Lands	113
Registration may be order by Land Court and Privy Council     Kaufusi v. Taunaholo     Tauelangi and Minister of Lands v. Tauelangi	70   123
SUPREME COURT
Jurisdiction to order payment of interest     Roberts v. Bank of British Columbia	119
Jurisdiction to order payment of interest     Teta Ltd. v. Ullrich Export Ltd	127
No jurisdiction to make orders for procedure for appear after judgment given     Polynesian Airlines Ltd. v. Moin	61
TORTS
Battery – liability of police for slapping arrested person     Soakai v. Taulua, Minister of Police and Government of Tonga	476
Damages – damages for physical injury not to be reduced because of provocation by plaintiff     Soakai v. Taulua, Minister of Police and Government of Tonga	46
Negligent statement – liability of police for incorrectly informing motorist that she could not drive her motor vehicle.     Soakai v. Taulua, Minister of Police and Government of Tonga	46
TRAFFIC OFFENCES
Issue of notice of intended prosecution does not cause driving licence to be suspended under S.16 Motor Traffic Act     Soakai v. Taulua, Minister of Police and Government of Tonga	46

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