Bank of South Pacific Tonga Ltd v Vea [2026] TOLC 2; LA 23 of 2025 (21 January 2026)

IN THE LAND COURT OF TONGA
NUKU’ALOFA REGISTRY
LA 23 of 2025

BETWEEN
BANK OF SOUTH PACIFIC TONGA LIMITED
-Plaintiff

AND

SIOSIUA VEA
-Defendant

RULING ON FORMAL PROOF

Before: Hon. Justice Tupou KC
Hon. Land Assessor Mrs. Fuiva Kavaliku
Appearances: Mrs. Dana Stephenson KC for the Plaintiff
Date of Hearing: 21 January, 2026
Date of Ruling : 21 January, 2026

Nature of the case

1. The Plaintiff, the Bank of the South Pacific Tonga Ltd is a financial institution carrying on business as a bank in Tonga. It has applied for judgment by formal proof pursuant to Order 6 Rule (3) of the Land Court Rules.
   
2. The writ of summons and statement of claim filed on behalf of the Plaintiff was served on the Defendant on 18 September, 2025. He has elected not take any steps to defend or participate in the proceedings. He was notified of today’s hearing and has not attended.
   
3. Pursuant to Order 6 Rule 1(3) he is not allowed to be heard even if he had attended.
   
4. The Plaintiff seeks a declaration that it is lawfully entitled to immediate possession of all that land comprised in Deed of Grant Book 433 Folio 50 (the “Town Allotment”) situated at Kolofo’ou and registered in the name of the Defendant and for orders against the Defendant to surrender up and grant vacant possession of the said Town Allotment to the Plaintiff.
   

The Evidence

5. The Plaintiff called Mr Elias Kendler, 30 years of age, of Ma’ufanga. He is employed as a Recovery Officer in the Loans and Management Unit at the Plaintiff bank. He had provided a written brief of evidence as well as the relevant documents on which the Plaintiff has relied in bringing this action. Mr. Kendler confirmed his brief of evidence filed on 19 January, 2026, in court today.
   
6. Mr. Kendler was familiar with the housing loan jointly taken out by the Defendant, Kalolaine Melanie and Malakai Lavulo ( the “Borrowers”) under account number 2001301262 (the “Loan”).
   
7. The Loan was for the purposes of renovations and refinancing various existing debt. The material terms of the loan were:
   

a) Loan Amount: $68,882.95;

b) Nominal Term: 145 months at repayment instalments of $650 per month commencing from 28 February, 2017;

c) Interest rate: 7.15 % per annum

d) Period of mortgage: 30 years; and

e) Security: registered mortgage over the Defendant’s Town Allotment best described under Deed of Grant Book 433 folio 50.

8. On 3 February, 2017 an initial disbursement of the Loan was made to the Borrowers in the sum of $58,530.20.
   
9. The Defendant mortgaged the land to the Plaintiff in accordance with the terms of the Loan agreement which was duly registered in the register of mortgages Book 7 Folio 11791 on 15 December, 2017.
   
10. The Borrowers defaulted under the terms of the Loan on multiple occasions where no repayments were made during the following periods:
    

a) July to November, 2017;

b) January to March 2018;

c) October 2018 to November, 2019;

d) January 2020 to August 2021; and

e) March to July 2023.

11. On 14 December, 2017, the Plaintiff served a notice of demand on the Defendant to pay the arrears within 7 days from date of the letter. No repayments were forthcoming and the loan remained in default.
    
12. As a result of the Borrower’s failure to settle the arrears as demanded, the Borrowers were in default for the purposes of section 109 of the Land Act which provides:

"In the event of the mortgagee taking possession of the lands mortgaged following default by the mortgagor of any of the obligations to the mortgagee set out in the mortgage deed or in any other document lodged with the Minister in terms of the next succeeding section the mortgagee shall give notification both to the mortgagor and the Minister of his intention to take possession of the lands mortgaged and may thereafter take possession at any time after the expiry of 14 days from the date of said notification.”

13. On 10 August, 2025 the Plaintiff served the Defendant with a section 109 notice of the said default and its intention to take possession of the Land after the expiration of 14 days. A copy of that notice was served on the Minister of Lands on even date.
    
14. The Borrowers started making intermittent repayments thereafter. However, those repayments still fell short of the agreed monthly repayments of $650. Consequently, the Plaintiff served another demand for clearance of the arrears on 14 July, 2025.
    
15. The Borrowers defaulted on that second demand and on 30 July, 2025 the Plaintiff served another s 109 notice on the Defendant by service on the mortgaged property of its intentions to take possession of the Town Allotment after 14 days. A copy of that notice was served on the Ministry of Lands on even date.
    
16. The notice expired on 14 August, 2025 but Mr. Vea has remained on the mortgaged land to date.
    
17. Mr. Kendler’s evidence is accepted and the Court is satisfied on the balance of probabilities that the Plaintiff has proven its claim.
    

Result

1. Accordingly, it is ordered that:
   
   1. the Plaintiff bank is entitled to possession of the Town Allotment situated at Kolofo’ou duly registered in the name of Siosiua Vea best described under Deed of Grant Book 433 Folio 50;
      
   2. Siosiua Vea and any persons claiming through him must forthwith surrender up and grant vacant possession of the said Town Allotment.
      
2. The Defendant shall pay the Plaintiff's costs to be taxed, if not agreed.

P. Tupou KC
NUKUÁLOFA: 21 January, 2026 J U D G E