Flowering trees and plants belonged to gardener not land owner [1]
Monday, August 24, 2020 - 22:26
A woman whose flowering trees and plants on a Puke allotment were destroyed by a neighbour who had an interest in the land, has won an appeal in the Supreme Court to receive compensation for the loss of the plants in her private garden. The case involved two parties who had been given informal rights to use the land belonging to Noble Fohe.
Lisia Paongo, appealed to the Supreme Court that a Magistrate had erred in dismissing a criminal charge that she brought against Heimona Pasi (a.k.a.) 'Ovalata Pasi, who had been charged with unlawfully damaging flowering trees belonging to her.
The trees, Pua Tonga, Siale Tonga, Pipi, Siale Tahi and Lose were established on the appellant's town allotment, which had been given to her by the former estate holder, Noble Fohe, who had passed away.
Hon. Mr Justice Niu, in a ruling on August 21, allowed the appeal. The judge found the respondent Pasi was guilty of the charge of intentionally and unlawfully damaging the trees and plants of the appellant. He ordered that Pasi be convicted and discharged.
The Judge also ordered that Pasi must pay compensation of $340 to Paongo for the loss she had suffered from his offence. If the amount is not paid within one month he will go to prison for 30 days in default. Additionally, Pasi was ordered to pay the costs of the appellant in the Supreme Court and in the Magistrat'e Court amounting to $2,500.
Appeal
The court heard that the situation arose because the appellant (Paongo) did not have the land granted to her and registered by the Ministry of Lands.
The present Fohe lives and works in Australia.
The appellant was informed by the present Noble Fohe's representative in September 2019 that he had been instructed by Fohe to inform her that he had given the care and maintenance of the land to the respondent (Pasi) who lives next door. She was told that she could cut and remove her trees and plants herself.
However, the appellant did not accept the instruction conveyed by the representative to her. She continued to use and clean the land as she had been doing and she did not cut down or remove any of her trees and plants. On May 1 this year she went and asked the representative to ask Fohe if she could have her house built on the land, as the house was being gifted to her by the LDS Church in their aid programme. The response was that no construction was to be done on the land. She heard that there was not enough for two town allotments and that the land she had, was to be given to the respondent (Pasi).
On or about 9 May while the appellant was away for the weekend the respondent destroyed all the plants and trees of the appellant on the land.
When Paongo brought charges against Pasi for the damage, the Magistrate had aquitted Pasi, believing that he had the interest in the land and anything situated on the land.
Appeal
The grounds of the appeal by Paongo was that the Magistrate had failed to give proper consideration to the appellant's possession of the land in which she had planted and maintained the trees for 30 years since 1989. She gave evidence of her establishment of her flower garden on the land.
Ruling
Justice Niu said, this case concerned the ownership of the trees and plants planted and maintained on the land. There is no legislation in Tonga that specifies the ownership of plants and trees on land, except legislations which provided the owner be compensated for loss for its destruction or removal.
“Tonga has therefore followed and applied English common law...that the owner [of the plants] is the person who planted and maintained the same as his property, except for timber trees, which belong to the owner of the land, unless otherwise agreed with the owner of the land.
"Plants, crops and trees unless they are timber trees, belong to the person who had planted and maintained them as his own. They do not belong to the person who owns the land and the Magistrate was wrong to have held that it formed part of the land and therefore went with the land when the land was taken off the appellant and given to the respondent."
The judge said these flowering trees were the lawful property of the appellant who had planted and maintained them... the land is a private garden of the appellant and the trees and plants are valued at $340.”
Mr Justice Niu ruled that the appellant had no right to destroy the plants. He ordered the compensation be paid to the appellant and also her court costs.