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Takataka v Hurrell [2005] TOLawRp 29; [2005] Tonga LR 359 (21 July 2005)

IN THE COURT OF APPEAL OF TONGA

Takataka anor

v

Hurrell anors

Court of Appeal, Nuku'alofa
Webster CJ, Burchett and Tompkins JJ
App 6/2005

19 July 2005; 21 July 2005

Civil procedure – application to call further evidence – no new evidence – application denied

In December 1999 a red Nissan registration number C6718 was bought by Ivan Prema. In May 2000, the first appellant, ("Lita") lent Prema $2,000, repayable in three months free of interest. As security for the loan, the car was transferred to Lita, but remained in the possession of Prema. In late 2000 or early 2001, Prema rented a property from the first respondent ("Hurrell"). Sometime later, Prema left the property owing approximately $600 in rent. He left the car on the property. It was in a damaged state, having been damaged in an accident. It sat in the garage for six months at which time the second respondent ("Taufalele") bought the car from Hurrell for $400. The second appellant ("Takataka") persuaded the Police to find the car. The result was that in March or April 2002, the Police found the car, seized it and took it to the Mu'a Police Station. The third appellant ("Taulahi") became involved. He was at that time a Police Superintendent and head of the Central Police Station. He checked the registration card at the Traffic Department. He was then contacted by Hurrell who informed Taulahi of the dealings he had had with Prema, as a result of which the car was released to Taufalele. Takataka made a formal complaint to the Police. The result was that about two weeks after the release, it was again seized by the Police and held at the Central Police Station. It was offered to Takataka, but he declined to accept it, claiming that it was then worth about $1,000 compared to what he said had been its former value of $6,000.

The appellants' claimed that the appellants had the sole right to ownership and possession of the car; that Hurrell did not have the right to sell the car, that the transaction between Hurrell and Taufalele relating to the car was unlawful, that the release by the police of the car to Taufalele was also unlawful and that the Kingdom was vicariously liable for the acts of Taulahi. The Supreme Court found in favour of the respondents and entered judgment for Hurrell, Taulahi and the Kingdom against the appellants with costs. The appellants were entitled to possession of the car. The appellants applied for leave to call further evidence. The respondents opposed the application.

Held:

1. The principles to be applied on an application for leave to call further evidence on an appeal were well-established. Leave would only be granted if these three conditions were fulfilled: if it was shown that the evidence could not have been obtained with reasonable diligence for use at the trial; if the further evidence was such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive; if the evidence was such as was presumably to be believed.

2. The Court found that all the evidence referred to had been given and findings in relation to it made by the Supreme Court. Quite apart from the failure of the appellants to establish a proper ground for the granting of leave to call evidence, it was apparent that the evidence sought to be called was unnecessary because it had already being given.

3. The application to call further evidence was dismissed. The respondents were entitled to costs on the application to be taxed if not agreed.

Case considered:

Ladd v Marshall [1954] EWCA Civ 1; [1954] 1 WLR 1489

Counsel for appellants: Sione Kengike
Counsel for first respondent: Fatai Vaihu
Counsel for third and fourth respondents: Lu'isa Fukofuka

Judgment

Introduction

[1] The appellants, the plaintiffs in the Supreme Court, have applied for leave to call further evidence at the hearing of this appeal. The respondents, the defendants in the 60 Supreme Court, oppose the application.

Background

[2] This case is all about a car, a red Nissan registration number C6718. It was purchased in December 1999 by Ivan Prema. In May 2000, the first appellant, ("Lita") lent Prema $2,000, repayable in three months free of interest. As security for the loan, the car was transferred to Lita, but remained in the possession of Prema. In late 2000 or early 2001, Prema rented a property from the first respondent ("Hurrell"). Sometime later, Prema left the property owing approximately $600 in rent. He left the car on the property. It was in a damaged state, having been damaged in an accident. It sat in the garage for six months at which time the second respondent ("Taufalele") bought the car from Hurrell for $400.

[3] The second appellant ("Takataka") persuaded the Police to find the car. The result was that in March or April 2002, the Police found the car, seized it and took it to the Mu'a Police Station. The third appellant ("Taulahi") became involved. He was at that time a Police Superintendent and head of the Central Police Station. He checked the registration card at the Traffic Department. He was then contacted by Hurrell who informed Taulahi of the dealings he had had with Prema, as a result of which the car was released to Taufalele.

[4] Takataka made a formal complaint to the Police. The result was that about two weeks after the release, it was again seized by the Police and held at the Central Police Station. It was offered to Takataka, but he declined to accept it, claiming that it was then worth about $1,000 compared to what he said had been its former value of $6,000.

The proceedings and judgment

[5] These proceedings were then commenced. The appellants' claim was based on an allegation that the appellants had the sole right to ownership and possession of the car. It was alleged that Hurrell did not have the right to sell the car, that the transaction between Hurrell and Taufalele relating to the car was unlawful, that the release by the police of the car to Taufalele was also unlawful and that the Kingdom was vicariously liable for the acts of Taulahi.

[6] At some stage, judgment by default was entered against Taufalele, he having taken no steps in the proceedings. It is not necessary for the purpose of this application to set out in any detail the findings in the Supreme Court. The Judge found in favour of the respondents. He entered judgment for Hurrell, Taulahi and the Kingdom against the appellants with costs. Any judgment against Taufalele was aside as it was unsupported by the evidence. He held that the appellants are entitled to possession of the car and that they should indicate within 14 days to the Police if they wished to uplift it. We were informed from the bar that the car is now in the possession of the appellants.

The application to call further evidence

[7] The principles to be applied on an application for leave to call further evidence on an appeal are well established. Leave will only be granted if these three conditions are fulfilled:

[a] If it is shown that the evidence could not have been obtained with reasonable diligence for use at the trial.

[b] If the further evidence is such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive.

[c] If the evidence is such as is presumably to be believed.

See Ladd v Marshall [1954] EWCA Civ 1; [1954] 1 WLR 1489, 1491.

[8] The affidavit or affidavits in support of the application must deal expressly with each of these requirements. As well as an explanation why the evidence was not available at the trial, a full description or a brief of the proposed evidence should be given or attached to the affidavit, together with any relevant information concerning the credibility of the proposed evidence.

[9] The application to call further evidence was supported by an affidavit from Takataka in support. In paragraph 5 he sets out four categories of evidence. They all involved evidence from the police. There is no explanation in the affidavit why this evidence was not given at the hearing. From the bar, counsel for the appellants submitted that the police officers were reluctant to give evidence, but no evidence to establish this was submitted in support of the application, and of course the appellants were free to subpoena any police witnesses they considered necessary.

[10] We discussed each of the four categories with counsel for the appellants. It was apparent, and we understood him to accept, that all the evidence referred to had in fact been given and findings in relation to it made by the Judge in his judgment. Quite apart from the failure of the appellants to establish a proper ground for the granting of leave to call evidence in this Court, it is apparent that the evidence sought to be called is unnecessary because it has already being given.

Result

[11] The application to call further evidence is dismissed. The respondents are entitled to costs on the application to be taxed if not agreed.

[12] We add a further comment. Without in any way indicating how the appeal should be decided, we record our discussions with counsel for the appellants in which we pointed out that the material before the Court and the facts found by the Judge strongly suggest that if the appellants are entitled to recover against the respondents, the amount is unlikely to be more than the price at which Hurrell was able to sell the car, namely $400, that being a good indication of the value at the time it was sold. If this be so, it is difficult to understand, in view of the likely legal and other costs involved, why the appeal should proceed further. That must be a decision for the appellants to make.