Havili v Tonga Development Bank [2008] TOLC 6; LA 14 of 2007 (1 December 2008)

IN THE LAND COURT OF TONGA
NUKU'ALOFA REGISTRY

LA 14 of 2007

BETWEEN:

ARTHUR KENNETH HAVILI
Plaintiff

AND

TONGA DEVELOPMENT BANK
First Defendant

YU ZHU AI
Second Defendant

KINGDOM OF TONGA
Third Defendant

BEFORE THE HON. JUSTICE ANDREW

Counsel: Mr Vaipulu for the plaintiff.
Mrs Vaihu for the 1st & 2nd defendants. Mr Kefu for the 3rd Defendant.

Date of judgment: 1st December 2008.

JUDGMENT

At the conclusion of the Plaintiff's case in the hearing of this matter, the defendants have submitted that there is no case to answer. That is based primarily on the submission that the Plaintiff has no standing to bring these proceedings as he has no legal title to the disputed land involved.

The background to this matter is as follows.

• The land in dispute is 949 M2 at Tofoa, Book 301 Folio 38, Lot 30, Plan 3973. The land was previously held by the Plaintiffs father, SIONE 'ALATINI HAVILI A.K.A. TEVITA TALI ME'A LAHI HAVILI. He is now deceased.
  
  • On or about 3rd July 1997 the Plaintiff's father had mortgaged the land to the First Defendant in consideration for a loan of TOP $24,200. That was registered on 11th July 1997. On or about 15th October 1997, the plaintiff's father applied for and was granted another loan of TOP$9,381.33. Those two loans were merged into one consolidated loan account by the defendant Bank.
    
  • On or about January 2000 the Plaintiffs father was unable to maintain the payment schedule stipulated in the consolidated loan and as a consequence, the consolidated loan was in default and the defendant Bank took possession of the land on 4th January 2000.
    
  • On or about 4th August 2000, the defendant Bank (Tonga Development Bank) sub-leased the land to the Second Defendant for a period of 25 years expiring on the 4th July 2025. As stated, the 25 years is the time frame calculated by the First Defendant for the total arrears arising from the final loan to be recovered.
    
  • The Plaintiff's claim is for damage said to be caused to the land primarily by the excavation and removal of soil and he claims that once the outstanding arrears are recovered, the land reverts back to him in the same condition as it was when the lst Defendant took possession.
    

I should add that it is a term of the sub-lease agreement with the second defendant that he has to remove all buildings from the land and clean, fill and level the land to the same condition as it was and to surrender the land to the holder, his heir and representative, at the conclusion of the sub-lease.

I think that the simple answer here is that ownership and title to the land has not been registered and transferred to the plaintiff. As confirmed by the Registrar of Land, no Deed of Grant has been issued to the Plaintiff. That is admitted by the Plaintiff himself.

For the title of an allotment holder to be complete it is necessary for him to be issued with a Deed of Grant to be registered. SEE FOLAU TOKOTAHA v DEPUTY MINISTER OF LANDS AND SANI VEA [1923-1962] TONGA LR (VOL. II) at 159. As there stated (at p.160);

"It is clear that formal registration consists of the registration "of the Deed of Grant". Registration is not complete until the Deed of Grant is prepared and a duplicate signed by the Minister of Land and handed to the applicant and the original "registered" and bound up. Since no Deed of Grant was ever issued to the Plaintiff in this case his "registration" was informal and incomplete."

The Deed of Grant is still in the name of the Plaintiff's father 'TEVITA TALI ME'A LAHI HAVILI'. The Sub-Lease to the 2nd Defendant is endorsed. What happened in this case is that the Plaintiff was not the heir to this allotment. His eldest brother purported to surrender the land to him and the Ministry of Lands issued to the Plaintiff a 'Certificate of Statutory Land holding'. That Certificate states, "The said land is mortgaged to the Tonga Development Bank and taken possession by Tonga Development Bank on the 4th January 2000 and transferred to above named (i.e. the Plaintiff) on 18 August 2005.

This document does not confer ownership and title to the land upon the Plaintiff. It is incomplete Registration. For that to happen the Plaintiff would have to be issued with a Deed of Grant (Ss 120, 121 and 122 of the Land Act).

I am satisfied that the Plaintiff was aware of the loans which his father had made. I am satisfied that the effect of S.107(1) of the Land Act is that the land cannot be registered to the plaintiff, that is, a Deed of Grant cannot be registered to him when the mortgage is still in effect. The Registrar of Lands confirms that the plaintiff is not the registered owner of this land.

The second defendant has a valid 25 year lease and the Plaintiff has no right to Registration: SEE TAUFA v VEAMATAHAU [1999] TONGA LR 200.

For these reasons I uphold the submissions that the Plaintiff has no standing to bring these proceedings and the Plaintiffs claims are dismissed.

I give Judgment to the Defendants.

Costs are awarded to the Defendants as agreed or taxed.

JUDGE

DATED: 1 December 2008.