Cocker v Cocker [2002] TOCA 10; CA 08 2001 (23 July 2002)

IN THE COURT OF APPEAL OF TONGA
NUKU’ALOFA REGISTRY

APP. NO. 8/2001

BETWEEN:

‘ISILELI TAVAKE COCKER
Appellant

AND:

HIVA COCKER and
SIONE COCKER
Respondents

Coram : Burchett J
Tompkins J
Beaumont J

Counsel:
For Appellant: Ms Helu
For Respondent: Mrs Vaihu

Date of hearing: 23 July 2002
Date of judgment: 23 July 2002

JUDGMENT OF THE COURT

[1] The decision under appeal in this case turned directly on the effect of the time bar enacted by s. 170 of the Land Act, which provides:

“No person shall bring in the Court any action but within 10 years after the time at which the right to bring such action shall have first accrued to some person through whom he claims, or if such right shall not have accrued to any person through whom he claims then within 10 years next after the time at which the right to bring such action shall have first accrued to the person bringing the same.”

[2] Both the Appellant and the second Respondent are grandsons of Sione Cocker, the Appellant’s father Siaosi Tupoulahi Cocker having been a son of his first marriage to Salote Tanginitopa, a grand-daughter of King Tupou 1, and the second Respondent’s father Tevita Cocker having been the eldest son of his second marriage to his wife Latu. When their grandfather Sione Cocker died, his widow Latu took a life estate in the land the subject of the dispute, and following her death, it was on 23 September 1971 registered in the name of Tevita Cocker.

[3] In 1972, the Appellant’s father Siaosi Tupoulahi Cocker brought a proceeding against Tevita Cocker in respect of the land, claiming it rightfully devolved upon him as the heir. However, on 24 April 1973, the proceeding was withdrawn.

[4] Then in 1985 Tevita Cocker died, and the land has since been held upon a life estate by his widow, the first Respondent, upon whose death it will, in the normal course, devolve upon the second Respondent as the eldest son of Tevita Cocker. But in 1994 the Appellant claims to have discovered that his father Siaosi Tupoulahi Cocker was the true heir of his father, and that Tevita Cocker obtained registration in respect of the land by the use of an incorrect affidavit.

[5] To this claim, the Chief Justice held s. 170 provides a bar which cannot be surmounted. In his judgment, he found that “the time at which the right to bring such action ... first accrued to some person through whom [the Appellant] claims” was 23 September 1971, when Tevita Cocker obtained registration in respect of the land (so the Appellant alleges, wrongfully). It is through the Appellant’s father that he himself claims, and to the Appellant’s father the right to bring the action then accrued. Not only is this so as a matter of legal analysis, but the Appellant’s father actually brought the action in 1972 to which reference has been made, although he withdrew it the next year. That action, the Chief Justice found, “was on exactly the same issue as is now raised by the present plaintiff”, that is, the Appellant.

[6] In these circumstances, it was held the time limited in s. 170 expired, at latest, on 24 September 1981. The question raised by this appeal is whether there is any answer to that conclusion.

[7] The Appellant filed written submissions in which it was suggested the withdrawal of his action by the Appellant’s father amounted to a surrender. If it were so regarded, the result would be that the estate would have devolved immediately upon the Appellant as his father’s heir. But s. 54 of the Land Act makes it clear a surrender requires “the consent of the Cabinet”; it is only when land is “so surrendered” that s. 54 could operate in the way suggested. We are satisfied the withdrawal of the action did not amount to a surrender.

[8] Then the Appellant argued that the fraud he alleged to have been involved in the registration of Tevita Cocker prevented time running under s. 170. The section concludes Part X of the Land Act, which is headed “The Land Court”. The first section of that Part is s. 144, by which the Land Court is constituted. Thus, when s. 170, the only section in Division IV of the Part, headed “Limitation of Action”, refers to “the Court” it clearly refers to the Land Court. It provides that, in the Land Court, there is a time bar of 10 years, and it provides no express exception. We do not need to decide whether, nevertheless, the well established doctrine of fraudulent concealment of a cause of action applies. But certainly there is no scope for an exception simply based on the nature of a cause of action in fraud. Section 170 applies in general terms to an action in the Land Court.

[9] For these reasons, the appeal is dismissed with costs.

Burchett J
Tompkins J
Beaumont J