The Land Court has ruled for the Kingdom of Tonga (Government) to pay $99,716 pa’anga to Siosifa Mosa'ati Uhi in compensation for overburden unlawfully removed from his tax allotment in Fua’amotu.

President of the Land Court O.G. Paulsen in a judgment on April 30 said the government was leasing Uhi’s tax allotment for 20-years and entered an agreement with him to use his land as a quarry (Quarry Agreement).

Government contracted Petani Quarry to operate the quarry.

The quarrying work began and disputes arose between the two parties, which were resolved in all but one aspect.

It was this case, where the court was asked to determine the damages payable to Uhi for what the Government accepts was the unlawful removal by Petani 29,328 m3 (49,858 tonnes) of overburden (5m layer of soil, clay, weathered rock and gravel overlying solid coral and rock deposits) on his land.

Value

Paulsen determined that the value of the overburden is $2 pa’anga per tonne.

He said as 49,858 tonnes was taken by Petani, that Uhi is entitled the payment by the Kingdom $99,716 pa’anga

The Quarry Agreement mentioned the overburden and the parties had agreed that it did not fix any compensation payable to Uhi on its removal.

In addition, an Operating Agreement mentioned the overburden but did not assign any value to it for royalty purposes and Petani had not paid any to the Kingdom (Government) for the overburden and this would all suggest that the overburden did have any in situ value, he said.

“But common sense suggests that the overburden did have some value. Clearly Petani had a commercial use for it and one can assume it would have been prepared to pay something for the benefit of its use.”

"In these circumstances the court must simply do its best to assign a value to the overburden to be fair to both parties."

Government said it was willing to pay Uhi $2 pa’anga per tonne for the overburden, and Uhi had repeatedly said if the Kingdom paid him $2 pa’anga per tonne of coral rock removed from his land, he would be happy.

"In the absence of any other evidence I adopt the value of $2 pa'anga of the overburden," he said.

The court heard that Uhi’s tax allotment known as Makamaka was 2.104h at Fua’amotu, where the Kingdom operated a quarry on nearby land known as ‘Ahononou Quarry and wanted to use Uhi’s allotment as a quarry to extract coral rock for road purposes.

The lease was approved in 2012 by Cabinet, registered in May 2013 by the Government for 20-years. On the same year, the two parties entered into the Quarry Agreement.

“The quarry agreement between the parties did not contemplate the removal of the overburden and its removal was a trespass by the Kingdom for which it was liable and compensation to be paid accordingly.”