Havili v Tonga Development Bank [2007] TOSC 32; CV 318-2007 (31 August 2007)

IN THE SUPREME COURT OF TONGA
CIVIL JURISDICTION
NUKU’ALOFA REGISTRY

CV 318 of 2007

BETWEEN:

ARTHUR KENNETH HAVILI
Plaintiff

AND:

1. TONGA DEVELOPMENT BANK
2. YU ZHU AI
3. KINGDOM OF TONGA
Defendants

BEFORE THE HON. JUSTICE ANDREW

Counsel:
Mr. Vaipulu for the plaintiff,
Mrs. Vaihu for 1st defendant/Applicant and
Mr. Kefu for 3rd defendant

Date of judgment: 31st August 2007

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 premiss 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 L.R 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.

NUKU'ALOFA: 31 August 2007

JUDGE