Havili v Tonga Development Bank [2007] TOLawRp 1; [2008] Tonga LR 5 (31 August 2007)

IN THE SUPREME COURT OF TONGA
Supreme Court, Nuku'alofa

CV 318/2007

Havili

v

Tonga Development Bank Anors

Andrew J
31 August 2007

Practice and procedure – application for strike out – concerned title to land – should have been filed in Land Court – proceedings struck out

The first defendant applied to strike out the action and the plaintiff sought leave to file an amended statement of claim. The basis of the strike out application was that 10 the proceeding concerned questions of title to land and interests in land and therefore fell within the jurisdiction of the Land Court rather than the Supreme Court. The claim involved title to the land in question; a mortgage and certain action taken by the first defendant as mortgagee in possession aa well as a sublease to the second defendant.

Held:

1. The jurisdiction of the Land Court was determined by section 149 of the Land Act (Cap 132). Jurisdiction was determined by the basic nature of the claim. If the claim essentially concerned title to land it must go to the Land Court. If it was essentially about something else it must go to the Supreme Court: Tu'ipulotu v Ma'afu [1994] Tonga LR 125 at 127.

2. The claim essentially concerned title to land and interests in land and was therefore a matter within the jurisdiction of the Land Court. The proposed amended statement of claim would not alter the nature of the claim as involving title and interests in land.

3. The matter was properly within the jurisdiction of the Land Court and not the Supreme Court. The proceedings, accordingly, were struck out with costs being awarded to the defendants.

Case considered:

Tu'ipulotu v Ma'afu [1994] Tonga LR 125

Statute considered:

Land Act (Cap 132)

Rules considered:

Supreme Court Rules 2007

Counsel for the plaintiff : Mr Vaipulu
Counsel for the first defendant : Mrs Vaihu
Counsel for the third defendant : Mr Kefu

Judgment

The 1st defendant applies to strike out this action pursuant to Order 8, Rule 8.

The plaintiff seeks leave to file an amended statement of claim.

The application to strike out is based on the premise that this matter concerns questions of title to land and interests in land and therefore falls within the jurisdiction of the Land Court and not the Supreme Court and therefore, it is said, that the proper forum is not the Supreme Court but the Land Court.

The jurisdiction of the Land Court is determined by s 149 of the Land Act as:

s 149(1)(b): to hear and determine all disputes, claims and questions of title affecting any land or any interest in land in the Kingdom and in particular all disputes, claims and questions of title affecting any Tofi'a, tax or town allotment or any interest therein; excepting any disputes, claim and questions affecting any land or interest in land resumed by the Crown under Part 14 of this Act.

In action No.6/88 (Cited in Tu'ipulotu v Ma'afu [1994] Tonga LR 125 at 127) Martin CJ said:

"Jurisdiction is determined by the basic nature of the claim. If the claim is essentially concerning title to land it must go to the Land Court. If it is essentially about something else it must go to the Supreme Court."

This claim involves title to the land described as 949.7 M2 at Tofoa Book 301, Folio 38, LOT 30 Plan 3973. It involves a mortgage over the land and subsequent possession by the first defendant following default on the loan. It involves a sub lease to the 2nd defendant and claims involving damage to the land. All of that is essentially concerning title to land and interests in land and must clearly therefore be a matter within the jurisdiction of the Land Court.

The proposed amended statement of claim would not alter the nature of the claim as involving title and interests in land. For these reasons it is properly a matter within the jurisdiction of the land Court and not the Supreme Court.

Accordingly the proceedings before the Supreme Court are struck out.

Costs, as agreed or taxed are awarded to the defendants.