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Mangisi v Minister of Lands [2007] TOLawRp 11; [2007] Tonga LR 72 (20 June 2007)

[2007] Tonga LR 72

IN THE LAND COURT OF TONGA

Mangisi

v

Minister of Lands anors

Land Court, Nuku'alofa
Andrew CJ (Acting)
L 9/2006

1 June 2007; 20 June 2007

Practice and procedure – application for strike out – inordinate and inexcusable delay – unavailability of bank officers – action struck out

The second defendant, the MBf Bank Ltd, applied to strike out the plaintiff's claim principally on the grounds of delay. The proceedings sought to raise questions about the legitimacy of the actions of the bank when they repossessed the land in question in 2001. A question arose over whether the plaintiff's claim was statute barred in any event as being outside the 10 year limitation period prescribed in section 170 of the Land Act. Earlier proceedings raising essentially the same issues were withdrawn on the day of the hearing resulting in substantial costs being incurred by all parties. Of the two bank officers primarily involved in the case, one was deceased and the other no longer resided in Tonga.

Held:

1. The proceedings were commenced within the 10-year period prescribed by section 170 of the Land Act.

2. The court had power under its inherent jurisdiction to strike out actions for delay but such powers should be exercised only where the court was satisfied either: (a) that the default was intentional or contumelious, eg: disobediences to a preemptory order of the court or conduct amounting to an abuse of the process of the court; or (b) that there was an inordinate and inexcusable delay on the part of the plaintiff or his lawyers, and that such delay would give rise to a substantial risk that it was not possible to have a fair trial of the issues in the action or was such as was likely to cause or to have caused serious prejudice to the defendants either as between themselves and the plaintiff or between each other or between them and a third party.

3. The unavailability of the two bank officers gave rise to a very substantial risk that it was not possible to have a fair trial of the issues and there had been inordinate and inexcusable delay. The action was struck out with costs to the defendant.

Cases considered:

Birkett v James [1978] AC 297

Fresha Export Ltd v Maseia Holdings Co Ltd [2006] TOSC 10

Skeen v Sovaleni [2005] TOLC 2; LA 16/04

Tu'itavaki v Masila [2002] TOLC 4

Statute considered:

Land Act (Cap 132)

Counsel for the plaintiff : Mr Kaufusi
Counsel for the first defendant : Mr Kefu
Counsel for the second defendant : Mrs Vaihu

Judgment

Introduction

The second defendants have applied to strike out the Plaintiff's claim, principally, on the ground of delay. Whilst ORDER 8 Rule 6 of the Supreme Court Rules, (the rule dealing with strike outs) contains no express provisions dealing with dismissal of an action for delay it is well established that the court has such powers under its inherent jurisdiction: See Fresha Export Ltd v Maseia Holdings Co Ltd [2006] TOSC 10. That authority cited the decision in Birkett v James [1978] AC 297 at 318 that:

"The powers should be exercised only where the Court is satisfied either

1. that the default has been intentional and contumelious. eg. disobediences to a peremptory order of the Court or conduct amounting to an abuse of the process of the Court; or

2. that there has been an inordinate and inexcusable delay on the part of the plaintiff or his lawyers, and (b) that such delay will give rise to a substantial risk that it is not possible to have a fair trial of the issues in the action or is such as is likely to cause or to have caused serious prejudice to the defendants either as between themselves and the plaintiff or between each other or between them and a third party."

The power to strike out has been followed in the Land Court: See for example Skeen v Sovaleni [2005] TOLC 2; LA 16/04 and Tu'itavaki v Masila [2002] TOLC 4.

On the hearing of the application the further question arose as to whether or not the plaintiff's claim was statute barred as being outside the l0 year period in which to commence proceedings, pursuant to s 70 of the Land Act. Whilst I am satisfied that there has been delay in. this matter, I am satisfied that proceedings have commenced within that period and that it is not statute barred.

The Plaintiff was the registered holder of leasehold land, a 2 acre area of land at Sopu under deed of lease number 6248. She first applied to cabinet in 1991 and her application was approved but it was not registered until September 1998. The land has been referred to as 'the container yard'. She entered into a loan agreement with the second defendant, MBf Bank Ltd, in 1995 and the container yard was used as security against her loan. The Plaintiff defaulted on her loan and the Bank proceeded to repossess the land in 2001. The Bank had obtained judgment in default against the plaintiff in 2002. The 3rd defendant tendered and purchased the lease in 2002 and has since developed the land.

In 2005 the Plaintiff issued proceedings in the Land Court (c/no LA /05) wherein she sought orders that:

"A. that the mortgaging of Lease 6248 by the 1st Defendant be declared null and void.

B. That the transferring of lease No 6248 to the second defendant is null and void.

C. Order that the plaintiff to take possession her lease land at 'Isileli' Sopu with dwelling home and one warehouse.

D. The order for the costs of this action."

Pleadings in this matter were closed after a number of preliminary hearings. The plaintiff had changed her lawyer. The hearing was set down for the 22nd February 2006 and all parties were ready to proceed. The Plaintiff then withdrew the action and she was ordered to pay costs. The Court orders noted that the plaintiff's claim was withdrawn and it was ordered that:

"1. The fixture for today is vacated.

2. The defendants are awarded one set of costs (Mrs Vaihu) to be agreed or taxed."

On the 4th October 2006 she issued a further writ wherein the statement of claim seeks:

"(a) A declaration that the transfer of lease No 6248 in dispute from the Plaintiff to the 3rd Defendant is void because the land was not available for transfer when the second defendant advertised the lease for Tender.

(b) The 3rd Defendant is unlawfully occupying the land in dispute and should be evicted.

(c) Costs of this proceeding.

(d) The other orders this Court may deem just.

I should also say that there were proceedings in July 2001 in which she sought to evict the 3rd defendant from the land. They were proceedings in L 1201/99. That claim was dismissed. The Court there noted: "It was not until early 1998 that she filed a claim in the Courts. It was the same year that she spoke on the telephone and received the fax reply and it was the same year that she took the step of instructing her lawyer to send a notice to quit. I find that an extraordinary delay made all the more extraordinary because the plaintiff mortgaged the property to the MBf Bank in 1995."

That case in not entirely apposite to the present situation as it was prior to the 3rd defendant becoming the registered leaseholder of lease 6248 and involved a dispute between the Plaintiff and her previous husband, but it is some indication of the delay involving this land and the continual claim by the Plaintiff that she is the legitimate leaseholder.

In my view the latest action commenced in 2006 is essentially the same as the claim which she commenced in 2005 and subsequently withdrew. It was not withdrawn however until the day of hearing and substantial costs had been incurred by all parties. I do not think that the current proceedings are res judicata as the proceedings in 2005 were withdrawn rather than having been dismissed.

The present proceedings seek to raise questions about the legitimacy of the actions of the Bank when they repossessed the land in 2001. Of the two Bank Officers primarily involved in that process, I accept the evidence that one is deceased and the other no longer resides in Tonga. In my view that gives rise to a very substantial risk that it is not possible now to have a fair trial of the issues. I consider that there has been an inordinate delay in this matter which is not excusable. The history of commencing proceedings and withdrawing and commencing again nearly 2 years later has caused all parties considerable cost and will now cause further substantial cost. I consider the Plaintiff's claim to be without merit where argument is unnecessary to evoke the futility of the plaintiff's claim and I consider that the defendants are prejudiced in all the circumstances. The costs of the first proceedings have only been partly paid before the commencement of these latest proceedings.

For all of these reasons in my opinion, the matter should be struck out.

ORDER

The action struck out with costs to the defendant as agreed or taxed.