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Bank of South Pacific Tonga Ltd v Aisea [2026] TOLC 1; LA 22 of 2025 (21 January 2026)

IN THE LAND COURT OF TONGA

NUKU’ALOFA REGISTRY

LA 22 of 2025

BETWEEN
BANK OF SOUTH PACIFIC TONGA LIMITED
-Plaintiff

AND

NAFETALAI ÁISEA
-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 20 August, 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 432 Folio 80 (the “Town Allotment”) situated at Kolovai 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 on in bringing this action. Mr. Kendler confirmed his brief of evidence filed on 20 January, 2026, in court today.
   
6. Mr. Kendler was familiar with the housing loan jointly taken out by the Defendant and Halamehi Faasee (the “Borrowers”) under account number 2001235825 (the “Loan”).
   
7. The loan was for the purposes of renovations, fencing and refinancing an existing debt to MBF Bank. The material terms of the loan were:
   

a) Loan Amount: $51,062.95;

b) Nominal Term: 10 years at $590 per month commencing from 30 June 2016;

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 432 Folio 80.

8. The Loan was fully disbursed to the Borrowers by 12 July 2016.
   
9. The Defendant applied for a mortgage over his Town Allotment in favour of the Plaintiff in accordance with the terms of the Loan agreement which was duly registered in the register of mortgages Book 7 Folio 11260 on 21 November, 2016.
   
10. The Borrowers defaulted under the terms of the Loan on multiple occasions where no repayments were made during the months of January to June 2022 and repayments due each month from November, 2022 to September, 2024 were not paid in the full agreed amount under the Loan agreement.
    
11. The Plaintiff served demands on the Defendant to pay the arrears on the Loan on 2 June, 2022 and 13 July, 2022. 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 12 November, 2024, the Plaintiff served the Defendant with a section 109 notice of the said default (by service on the property) 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 notice expired on 27 November, 2024. The court heard that although Mr. Áisea had vacated the Town Allotment but unrelated third parties remain and refuse to leave.
    
15. 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 Kolovai, duly registered in the name of Nafetalai Áisea best described under Deed of Grant Book 432 Folio 80;
      
   2. Nafetalai Áisea and any third persons in occupation must surrender up and grant vacant possession of the said Town Allotment forthwith.
      
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