IN THE LAND COURT OF TONGA
NUKU'ALOFA REGISTRY

LA 9 of 2006

BETWEEN:

'OLIVE MANGISI FILIPE
Plaintiff

AND:

MINISTER OF LANDS
First Defendant

AND:

MBF BANK LIMITED
Second Defendant

AND:

MALIA TOPUI (as executrix of the estate of TEVITA TOPUI deceased.)
Third Defendant

Fa'otusia	for the Plaintiff	
'A. Kefu (Solicitor General)	for the First Defendant	
Mrs. F. Vaihu	for the Second and Third Defendants.	

DECISION

1. 	The following facts emerge from the Judgment of this Court delivered on 11 July 2001 (LA 1201/99):
	(i) The Plaintiff was the registered owner of leasehold land at Sopu under Deed of Lease 6248. She first applied for the lease in 1991 and her application was approved by Cabinet but it was not until September 1998 that the lease was actually registered.
	(ii) In 1992 the Plaintiff commenced proceedings against her husband Sione Filipe (CV 1061/92). Those proceedings were terminated upon settlement being reached and recorded in a Deed of Settlement dated 12 January 1993.
	(iii) Paragraph 2 (c) of the Deed permitted Sione Filipe to have "usage of container yard at Sopu".
	(iv) The container yard at Sopu is the subject matter of Lease 6248.
	(v) The Plaintiff's claim to evict her husband from the leased land was dismissed.
2. 	On 10 November 1995 (which was after the Plaintiff's application for lease 6248 had been made but before the lease was registered in her name) the Plaintiff entered into a loan agreement with the Second Defendant. A copy of the agreement is Document 3 of the Plaintiff's production in another action in the Land Court - LA 8 of 2005. It appears that there was a separate "deed of mortgage of leases" but a copy of this document has not been seen by the Court.
3. 	Paragraph 4 of the Agreement relates to securities. It commences with the following preamble:
	"In consideration of the receipt by the borrower of the loan or any part thereof and, in addition to the promises and undertakings by the Borrower to make the aforesaid repayments in such sums and at such times as aforesaid, the Borrower hereby declares:
	(a) that the borrower is the sole legal and equitable owner of the following properties and that the Borrower is unaware of any person who has, or is likely to have, any interest or claim of any interest in those properties:
	(i) –
	(ii) -
	(iii) Leases numbered 4608 in the name of Olive Mangisi
	4880 in the name of Olive Filipe
	5472 in the name of Olive Filipe
	4881 in the name of Olive Filipe
	and of the lands with an area of 2 acres 23 perches more or less situated behind and South of the premises of the Fisheries Department at Sopu and all fences, buildings, structures, machineries, appliances, containers and things presently kept thereon." (emphasis added).
	It was conceded by counsel that it is these 2 acres, 23 perches which comprise Lease 6248.
4. 	On 6 May 2005 the Plaintiff commenced proceedings in this Court (LA 8/2005) against the Second Defendant herein, against Tevita Topui, the deceased husband of the present Third Defendarit and against one Satendra Kumar. In paragraph 2 of the Statement of Claim it is stated that:
	"...due to the Plaintiff failed to comply with the condition of the loan agreement, the [Bank] seized the Plaintiff's collateral as follows:
	(a) -
	(b) the Plaintiff's leased land at Sopu 6248 of 2 acres for 50 years sold to Tevita Topui for $60,000 without the consent of the Plaintiff or approved by Cabinet.
	(c) –"
5. 	In paragraph 7 of the Statement of Claim it was pleaded that:
	"the Plaintiff submits that the [Bank] seized the Plaintiff's leased land 6248 … in breach of the deed of settlement between the Plaintiff and her former husband case 1061/92 caused case LA 4/2003".
6. 	The Plaintiff prayed, inter alia, for an order "cancelling the lease by mortgage given to [Tevita Topui]" and a declaration "that the pledge by the First Defendant of the Container Yard at Sopu lease no. 6248.....with dwelling house and warehouse as security over her loan with [the Bank] was unlawful and in breach of the Deed of Settlement with the Plaintiff and her former husband".
7. 	In October 2005, after Defences had been filed, the Plaintiff instructed fresh counsel and an amended Statement of Claim was filed. There is no copy of any application for leave to file those pleadings in the papers before me. In addition to the claims pleaded in the original Statement, the Plaintiff stated that she had drawn the Deed of Settlement to the Bank's attention and had also advised the Bank that the 2 acres was yet to be registered in her name. In paragraph 6 the Plaintiff stated that the Bank, through its employee Tu'ihakavalu Ika informed her that this land would be removed from the list of securities to be included in the deed. It was also pleaded that the lease was sold to Tevita Topui without the Plaintiff's knowledge.
8. 	On 3 February 2006 the Plaintiff was ordered to pay into Court $5000 as security for costs "covering both this action and action CV 296/05". It was also ordered that LA 8/2005 be tried on 22 February 2006, together with LA 4/2003, which apparently was still urIldisposeci of. I do not know what was involved in CV 296/2005 and the!only reference to LA 4/2003 that I have been able to locate is referred to in paragraph [5] above.
9. 	On 6 February 2006, for reasons which are not recorded in the file, the amended Statement of Claim in LA 8/2005 was struck out. On 22 February 2006, again for reasons which are not disclosed, the action was withdrawn without the trial taking place. 
10. 	On 11 August 2006 the Plaintiff commenced fresh proceedings (LA9/2006) in respect of Lease 6248 against the Bank, Tevita Topui and the Minster of Lands. The Plaintiff sought a declaration that the lease was not available for forfeiture to and sale by the Bank in view of the Plaintiff's husband's right to use the land embodied in paragraph 2 (c) of the Deed of Settlement dated 12 January 1993. In paragraphs 4, 5 and 7 of the Statement of Claim the Plaintiff referred to discussions which she had held with Mr. Tu'ihakavalu. Without offering any particulars, it was pleaded that the Ministry was aware of Slone Fiilpe's right to use the land. The Plaintiff also sought an order evicting Tevita Topui from the land.
11. 	On 9 November 2006 the Bank filed an application to strike out the Plaintiff's claim together with an alternative claim for security for costs, the Plaintiff being ordinarily resident out of the Jurisdiction. In a supporting affidavit the Bank suggested that following the withdrawal of LA 8/2005 the matter was now res judicata and an abuse of the process of the Court. In her affidavit opposing the application, the Plaintiff deposed that she had been "cheated" by the Bank. In paragraph 2 (i), (ii), (iii), (iv), (v) and 3 she described conversations with Mr. Tu'ihakavalu and alleged breaches by him of the agreement which they had reached.
12. 	On 20 June 2007, Andrew J ordered that the Plaintiff's action be struck out. He explained that he was acting in the inherent jurisdiction of the Court and referred to Birkett v James [1978] AC 297. While it was accepted that LA 9/2006 was essentially the same action as LA 8/2005 the Court did not think that the matter was res judicata. Unfortunately, there is no record before me of what occurred at the hearing but it appears that certain information as given which enabled the Judge to accept that of the two Bank officers primarily involved in the case, one had died and the other no longer lived in Tonga. The Judge stated that in his view that fact gave rise to a very substantial risk that it was now no longer possible to have a fair trial of the issues. The Judge expressed the view that there had also been inordinate and inexcusable delay. Finally, he described the Plaintiff's claim as being without merit but gave no reasons for arriving at this conclusion. In all these circumstances the Plaintiffs claim was struck out.
13. 	On 25 July 2008 the Court of Appeal allowed the Plaintiff's appeal against the striking out of her claim. Central to the Court's decision was the finding that the Supreme Court had erred in accepting the assertion that Tu'ihakavalu was dead and that the other bank officer principally concerned in the negotiations with the Plaintiff could no longer be located when there was no affidavit evidence to that effect.
14. 	In paragraph [15] of the judgment the Court of Appeal stated:
	"It may possibly be that the case as pleaded in LA 9/2006 is doomed to fail. It appears to be based on a contention that the existence of what may have been a licence to the [Plaintiff's] husband precluded the transfer of the lease by the Bank as mortgagee in possession to Tevita Topui. It is not obvious to us that, as a matter of law, a case framed in this way could succeed. However we heard no submissions on this question and it was not a matter pursued before Andrew J in the strike out application. If this analysis is correct (and we should not be taken to be expressing a concluded view about it) then it would provide a firmer and more satisfactory foundation for striking out the appellant's claim".
15. 	Unfortunately, no directions for the future conduct of the action were sought from the Court of Appeal and none were given. The matter then went to sleep for 4 ½ years. The next step taken was the filing of an amended Statement of Claim. On 30 January 2013 the Chief Registrar advised counsel for the Plaintiff that he must issue notice of intention to proceed after a delay of 12 months and that leave had to be obtained to file the amended Statement of Claim.
16. 	On 5 February 2013 application was made to file the amended Statement of Claim. No affidavit was filed in support, however in answer to the Chief Registrar's letter Mr. Fa'otusia wrote:
	"As to the long delay, and without giving excuses, we would like to submit that the former counsel for the Plaintiff has advised us that due to lack of instructions from the Plaintiff the said appeal as to proceed or otherwise with the case, the case was then in limbo for quite a while until the Plaintiff advised us in about December 2012 to proceed with the case."
	Paragraph 2 of the application notice is as follows:
	"The single ground that we see has merit in this case is that the inclusion of a lease not registered according to the Land Act as security for the Plaintiff's loan is unlawful; and therefore all the dealings with that lease is unlawful including the subsequent transfer of the lease to the Third Defendant."
17. 	On 5 February, the Second and Third Defendants filed a cross application for the action to be struck out in the inherent jurisdiction of the Court, on the grounds of inordinate and inexcusable delay and, under the provisions of Or. 8 r 8 of the Supreme Court Rules on the grounds that the action is scandalous, frivolous and vexatious and that it is an abuse of the process of the Court. The application supported by the First Defendant against whom, as pointed out by Mr. Sisifa, no relief is sought.
18. 	In support of her application, Mrs. Vaihu filed an affidavit sworn by the Bank's recovery manager Langi Vailanu on 5 February 2013. From this affidavit the following points emerge:
	(a) Mr. Tu'ihakavalau Ika died in 2003;
	(b) Mrs. Nunia Hala'api'api "who dealt with most of thedocumentation of the Plaintiff's loan" left the Bank in 2006 and cannot be traced;
	(c) A number of original documents relevant to the case were destroyed in November 2006 riots;
	(d)The Plaintiff still owes the Bank more than T$500,000.
19. 	In a second supporting affidavit filed on 20 March 2013, the Third Defendant deposed that all dealings with the Bank were with her deceased husband, that after acquiring the land he developed it at considerable expense and that the Third Defendant does not have the financial means to defend the action.
20. 	The Plaintiff filed an affidavit in answer on 11 June 2013 stating that she wished to proceed against the Third Defendant "she will not be any person different from her deceased husband if he was still the Third Defendant". In a second affidavit filed on 10 June the Plaintiff deposed:
	(a) That she was unaware that the land comprised in lease 6248 had been included in the loan agreement dated 10 November 1995;
	(b) That after judgement was delivered in 2001 in LA 1201/1999 (see para [1] above) "I then advised Tu'ihakavalu Ika to exclude the said lease from the mortgage as my husband has licence to use it as a container yard; and
	(c) The senior office at the Ministry of Lands, Samisoni Pone, with whom she had dealings in relation to LA 1201/1999 had also died.
21. 	In her oral submission at the hearing of the application on 12 June 2013 Mrs. Vaihu emphasized the long delay since the appeal was allowed in 2008, she reaffirmed that the principal witnesses that the Bank wished to call were unavailable, she suggested that the Third Defendant's husband was a bona fide purchaser or value against whom the Plaintiff had no cause of action and she submitted that there was nothing unlawful in the inclusion of the land as one of the securities offered by the Plaintiff when she took the loan from the Bank in 1995.
22. 	Mr. Fa'otusia suggested that the proposed amended Statement of Claim had clarified the issues between the parties. He told me that the only argument that would be pursued was the claim that the Plaintiff was unaware that the land had been offered as a security. She had not read the loan document before signing it. It was in addition, written in English however Mr. Fa'otusia conceded that the Plaintiff had command of this language. Mr. Fa'otusia suggested that the delay since 1998, which was the result of the Plaintiff "roaming around the world before coming back to Tonga, and deciding to proceed with her action", was "only under 5 years". It will be noted that the plea of the non est factum is not included in the proposed amended Statement of Claim and that the plea is different from the allegation of unlawfulness pleaded in paragraph 5 of the proposed amended Statement of Claim which allegation, as has already been seen, was stated in paragraph 2 of the application notice to be the only ground "with merit". For the avoidance of doubt both submissions, non est factum and unlawfulness will have to be considered.
23. 	In my opinion, neither of these arguments is reasonably arguable. As to the former, the Plaintiff, clearly has excellent English and, according to her own evidence, has been a business person since the 1990's. Although claiming not to know that the land was included in the loan agreement, she was able to instruct Tu'ihakavalu to remove the land from the agreement in 2001. As a general principle, parties will be held to the contracts that they have signed (Saunders v Anglia Building Society) [1971] AC 1004.
24. 	The suggestion that the inclusion of an unregistered piece of land as a security for a loan is "unlawful" was not particularized. It will however be noted that the land was registered in 1998 but was not taken into possession by the Bank until 2001. While the land was not registered in the Plaintiff's name in 1995, she stated, as as already been noted in paragraph 3 above, that no one else had any interest in the land. Following Cabinet's approval of the grant of the lease to her in 1991, it seems clear that although Section 126 of the land Act had yet to operate to pass a legal interest in the land to her, she had an equitable interest while awaiting formal registration. The suggestion that the existence of a licence (which does not create a interest in land) granted by the Plaintiff to her husband, could prevent the land being offered as a security to the bank is not only unsupported by authority but seems to be unarguable. It was at no time suggested that Sione Filipe was granted a permit to occupy the land in the Form required by Section 125 of the Land Act or that such a permit was ever registered as required by Section 126.
25. 	Apart from these apparent weaknesses in the Plaintiff's case, it is plain to me that the Plaintiff has been guilty of inordinate and inexcusable delay in the prosecution of her case with the result that there is a substantial risk that a fair trial of the issues between the parties cannot now be held. Both of the alternative grounds for excluding the land from the loan agreement now being advanced by the Plaintiff would require detailed examination of the circumstances surrounding the preparation of the loan document and the agreement reached before it was signed. These events occurred 18 years ago and the principal defence witnesses are no longer able to testify.
26. 	As pointed out by the Court of Appeal in 2008: "Courts are increasingly active in ensuring that Court proceedings do not constitute an oppressive abuse of legal process". The conclusion that I reach having considered all the papers and other matters before me is that, as a result of the Plaintiff's egregious delay in prosecuting her action "prejudice has resulted in an inability of the Court to deal fairly with the case and there can be only one answer and one sanction, that is for the proceedings to be struck out" (Purefuture Ltd v Simmons & Simmons Court of Appeal (E&W) May 25, 2000).
RESULT
I am satisfied that this action should be struck out:
	(a) as disclosing no reasonable cause of action and as such being an abuse of the process of the Court; and
	(b) for want of prosecution resulting in serious prejudice to the Defendants.
I will hear counsel as to costs.
PRESIDENT
DATED: 19 June 2013.