Fungavai v Niutupuua [2002] TOLC 1; L 0028 2000 (9 January 2002)

IN THE LAND COURT OF TONGA
NUKU'ALOFA REGISTRY

NO. L.28-2000

BETWEEN:

1. FALETUI FUNGAVAI
2. HASILONI FUNGAVAI
Plaintiffs

AND:

1. LANGILANGI TUITU'U NIUTUPUUA
2. MINISTER OF LANDS
Defendants

BEFORE THE HON CHIEF JUSTICE WARD
AND ASSESSOR GEORGE BLAKE

COUNSEL: Mr Kengike for plaintiffs
Mr 'Etika for first defendant
Mr Fusitu'a for second defendant.

Date of Hearing: 9 January 2002
Date of Judgment: 9 January 2002

JUDGMENT

This is a claim to have the registration of an allotment, Tukupeau, in Niutoua, Tongatapu cancelled. It has to be said at the outset that the statement of claim is badly drafted and almost incomprehensible. Although it is a claim in the Land Court it is drafted in terms of contract which is incorrect and irrelevant and of tort which also has no place in this Court. Doing the best I can, it appears that the main basis of the Land Court claim is that registration was in violation of the first plaintiff's widow's right to the allotment and that it was made to a man who had died some years before and thence to his son. It includes allegations of fraud by the first defendant and of negligence by the second defendant.

The defendants deny most of the matters averred in the claim and also assert that the action is time barred under section 170 of the Land Act. The claim was first filed on 5 December 2000 and every event referred to in the statement of claim occurred well over ten years before that date. The actual registration which the plaintiff seeks to cancel by this action occurred on 14 January 1986 and is the latest event mentioned in the pleadings.

Having ascertained from Mr Kengike in chambers that the evidence he intended to call related entirely to events prior to that date, I directed that the question of limitation should be decided as a preliminary matter.

After hearing counsel, I dismissed the claim with costs to the defendants. I stated I would give written reasons for my decision later and I now do so.

Counsel for the plaintiffs addressed the Court on the basis of facts which, to a large extent, were not admitted by the defendants. However, for the purpose of the ruling on the effect of section 170, I have proceeded on the basis that they would have been proved.

The husband of the first plaintiff registered the land on 4 March 1928. He died in 1954 and his widow, the first plaintiff, succeeded to the land. She did not register her interest and Mr Kengike told the court that there were discussions with the, then, Minister of Lands, Hon Tu'ipelehake, about this and the identity of a possible heir. Apparently both the son of the deceased holder and that son's brother had land already and so the Tu'ipelehake suggested that the son of the oldest son should be the heir and could be represented by a trustee. That son is the present second plaintiff and was born in 1955.

The family continued with the land on that basis but still nothing was registered. They were surprised when, in 1971, the land was surveyed and part subleased to others. It appears on the account given by Mr Kengike that the land was, at that time, being used by one Pita Niutupuua.

Pita Niutupuua died in 1981. In 1986 the second defendant obtained the registration of the land in his name on the basis of an affidavit sworn by him just prior to the registration. As I understand Mr Kengike's submission, he is saying either that the affidavit lied about the death of the first defendant's father or that it persuaded the Minister to register Pita as the landholder posthumously.

Mr Kengike's case is that this registration was done in contravention of the widow's interest in the allotment and she should have the land returned to her, including those parts now leased to others.

It is correct, as Mr Kengike points out, that article 113 f the Constitution has always given a widow such a right. The amended article provides; "A widow shall have the right to succeed according to law, to her deceased husband's tax and town allotments".

Section 80 of the Land Act provides that the widow's entitlement is to a life estate in the allotment subject to two provisions, neither of which is claimed here.

If those facts are correct, and I repeat that they are not all admitted by the defence, this old lady may well have suffered an injustice. Mr Kengike effectively asks the court to correct it simply because it is an injustice. Unfortunately for the plaintiffs, the time for seeking a remedy has passed.

Section 170 of the Land Act provides:

"170. 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."

Mr Kengike suggests that the effect of this provision is that the plaintiffs' rights will be taken from them. He argues that the widow's right is still there and that it is not a matter for the court but for the discretion of the Minister. I confess I do not follow the logic of his argument as it was he, not the defendants, who brought this action seeking an order from the court.

The court is bound by the law. Parliament has provided a defence to any action that has been delayed more than ten years and the defendants are entitled to use that protection as they have done in this case.

As I have stated, it is true that section 170 may prevent a person whose rights have been violated stopping the violation. Mr Kengike repeated many times that the first plaintiff's right to the land as a widow is a life estate. That is correct but the intention of section 170 is not to limit a person's rights. It is to limit the time in which an action can be brought to correct any wrong done in relation to that right.

It provides that the ten-year limitation period runs from the time at which the cause of action arose. In this case, that was when the land was registered in 1986 and, arguably in relation to the sub-division and leasing of part of the 'api, in 1971.

At any time up to 13 January 1996, this lady could have brought this action to seek to correct the registration. She did not do so and section 170 now prevents the court from considering it. I would only comment that it is a pity counsel did not advise her of this fact at the outset rather than raise her hopes vainly and incur an inevitable award of costs against her.

The claim is dismissed with costs to the defendants to be taxed if not agreed.

NUKU'ALOFA: 14^th January, 2002

CHIEF JUSTICE