Kaufusi v Tufi [2018] TOCA 7; AC 14 of 2017 (26 March 2018)

IN THE COURT OF APPEAL OF TONGA
LAND JURISDICTION
NUKU’ALOFA REGISTRY

AC 14 of 2017

[LA 9 of 2017]

BETWEEN : NAITINGIKEILI KAUFUSI

- Appellant

AND : ‘ALANI TUFI
- Respondent

Coram : Handley J

Blanchard J

Hansen J

Counsel : Mr. D. Corbett for the Appellant

Mr. S. Tu’utafaiva for the Respondent

Date of Hearing : 20 March 2018

Date of Judgment : 26 March 2018

JUDGMENT OF THE COURT

[1] The appellant appealed from the judgment of the Land Court, constituted by the Lord President, who upheld a limitation defence and dismissed his action for possession. The appellant is the registered holder of Lot 14 comprised in the tax allotment at Haveluloto called Tufitokelau. The respondent claimed that he went onto the land in 1989 with the permission of the appellant’s grandfather Tevita. The land, which had been covered in bush and was swampy, was cleared and drained and he built a house on it. Tevita died in 1999 or thereabout and his eldest son Viliami predeceased him in 1998. The Lord President found that the appellant claimed the land as Viliami’s heir and it was granted to him on 17 May 1998. The respondent was then, and is still, in possession of lot 14.

[2] In November 2016 the appellant’s lawyer sent a letter to the respondent demanding possession which the latter ignored. These proceedings were commenced on 10 March 2017.

[3] The Lord President upheld the respondent’s plea of limitation based on 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”.

[4] As the Lord President held, the appellant’s right of action against the respondent first accrued when he was granted the land on 17 May 1998. The licence granted to the respondent by the appellant’s grandfather lapsed on his death and the appellant as the holder was entitled to possession.

[5] As the Lord President also held, time then began to run whether or not the appellant was aware of his right to possession and the respondent’s occupation. Knowledge that one’s right of action has accrued is not a requirement under s.170 for time to commence running.

[6] Knowledge of the cause of action is not an inherent qualification of limitation defences. In Cartledge v E. Jopling & Sons Ltd [1963] AC 758 at 782 Lord Pearce said:

“Past cases have been decided on the basis that the time runs from the accrual of the cause of action, whether known or unknown, and no case has been cited in which the plaintiff’s lack of knowledge has prevented the time from running”.

[7] The respondent claimed that he went into possession of the land in around 1989 and that Tevita had been present in 1990 while the house was being built. The appellant sought leave to adduce further evidence in this Court in the form of Tevita’s passport which established that he left Tonga on June 16 June 1989 and did not return in 1990.

[8] The Court rejected this evidence because it was immaterial. The respondent was in possession of the land when the appellant became the registered holder on 17 May 1998 and his right to bring an action for possession first accrued. What happened on the land in 1989, 1990 or 1991 is simply irrelevant both to the claim and the limitation defence.

[9] Mr. Corbett, who did not appear for the appellant below, attempted to rely on the judgment of Lewis J in the Land Court in 1997 in the case brought by Viliami against Tevita and his half-brother by a second marriage. Lewis J found in favour of the father on 30 April 1997.

[10] His order 3 required Viliami to elect between the subject land and other land. Mr. Corbett submitted that Viliami had not elected and therefore time had not commenced to run against the appellant.

[11] There is no evidence and no finding that the father did not elect in his lifetime. In any event the appellant cannot attack the very title he relied on in his statement of claim to base his right to possession of the land.

[12] The appeal is dismissed with costs.

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Handley J

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Blanchard J

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Hansen J