Falepaini v Tukufuka [2006] TOLC 3; LA 014 2004 (31 July 2006)

IN THE LAND COURT OF TONGA
VAVA’U REGISTRY

LA 14/04

BETWEEN:

MR SISI TOUTAI FALEPAINI
Plaintiff

AND:

1. MR TEVITA KAAFE TUKUFUKA
2. DEPUTY MINISTER OF LANDS
Defendants

HEARD AT NEIAFU BEFORE THE HON CHIEF JUSTICE WEBSTER and ASSESSOR HON FOTU ON 24 & 25 MAY 2006

Counsel:
Plaintiff: Mr Vaipulu
1st Defendant: Mr Kaufusi
2nd Defendant: Mr Sisifa

RESERVED DECISION GIVEN ON 31 JULY 2006

Preliminary

This case concerns a town allotment named Seilala in the village of Feletoa, Vava’u originally registered in 1928 in name of Mr ‘Aliki Fangupo, who was the grandfather of both the Plaintiff Mr Sisi Toutai Falepaini and the 1st Defendant Mr Tevita Kaafe Tukufuka. The Plaintiff is the heir to the allotment and he brought this action (1) to have declared null and void the subdivision and grant of part of that allotment on 9 September 1982 by the 2nd Defendant, the Deputy Minister of Lands, to the 1st Defendant’s father Mr Mosese Tukufuka; and (2) for the subdivision to be made to give effect to the original agreement between the Plaintiff, his father, Mr Peni Latu Falepaini, and the Plaintiff’s uncles Mr Mosese Tukufuka and Mr Mavaetangi Fangupo.

Both Defendants disputed the Plaintiff’s claims and sought their dismissal.

Evidence and submissions

The Plaintiff Mr Sisi Toutai Falepaini Latu gave evidence on his own behalf; and led evidence from his uncle Mr Sione Mavaetangi; and Mr Makafilia Taungatu’a Mafi, Land Registrar for Vava’u. The 1st Defendant Mr Tevita Kaafe Tukufuka gave evidence on his own behalf; and led evidence from Mr Paula Lo’amanu, Government Surveyor for Vava’u.

The Plaintiff and the 1st Defendant both filed documentary productions.

On 24 May the Court visited the site of the town allotment in dispute at Feletoa, Vava’u.

On conclusion of the evidence submissions were made for the parties in support of their cases.

Primary facts

The Court found that the basic primary facts were as follows (in setting these out it was greatly assisted by the Chronology prepared by Counsel for the 1st Defendant):

1. The allotment was first registered in name of ‘Aliki Fangupo on 21 September 1928. His 3 sons concerned in this case were, in order of age, Peni Falepaini (father of the Plaintiff); Sione Mavaetangi; and Mosese Tukufuka (father of the 1st Defendant).
   
2. The area according to the Statement of Claim is 2R 37p. But according to the Acting Minister of Lands letter dated 10 July 1989 it is 2R 33.6p.
   
3. Mosese Tukufuka, who as mentioned was one of ‘Aliki’s sons, filed an application with the 2nd Defendant the Deputy Minister of Lands on 16 November 1965 (1st Defendant’s Production 1), in which he stated:
   

Application is respectfully made that you favourably consider granting me a town allotment in Feletoa in the district of Vava'u, and it is known as SEILALA and the particulars are stated below.

District of Estate holder Name of allotment Name of person last

registered to.

Vava'u Government Seilala 'Aliki Fangupo.

I hereby declare that I am a Tongan citizen and am already 16 years of age but is not yet a holder of a town allotment and have paid my taxes for the year.

R 38364 L1.12

Signature of land holder: Mosese Tukufuka of Feletoa Dated 16.11.65.

It was not clear why Mosese made that application at that time, when his father ‘Aliki may have still been alive, and his mother Salote certainly was. The application was not granted at that time.

4. The exact date of ‘Aliki’s death did not come out in evidence, but the allotment Seilala was transferred to his widow Salote Fangupo on 18 May 1977. Salote Fangupo then died on 5 July 1980; and the Plaintiff’s father, Peni Latu Falepaini, filed an heir affidavit with the 2nd Defendant on 9 June 1981.
   
5. Mosese’s application of 1965 for an allotment of 1R 24p was granted by the 2nd Defendant on 1 September 1982, when the survey fee appears to have been paid.
   
6. As Peni had his own town allotment at Feletoa, the 2nd Defendant ordered on 4 January 1984 that the allotment Seilala was transferred to the Plaintiff. The Plaintiff (who is now aged 66) lived on Seilala from 1982 to 1986, after which he went to Tongatapu for the education of his children. Around that time the Plaintiff had agreed with his uncles Sione Mavaetangi and Mosese Tukufuka, who at that time had houses on the allotment Seilala, that the allotment should be subdivided to give the following areas: the Plaintiff 1R 13.6p; Sione Mavaetangi and Mosese Tukufuka each 30p.
   
7. On 10 July 1989 the 2nd Defendant directed the survey of Mosese’s town allotment (1st Defendant’s Production 2):
   

Survey and cut statutory size (1R 24p) town allotment of Mosese Tukufuka at Feletoa, Vava'u, Government Estate.

Please survey and cut a statutory size town allotment of the above-named as it appears above.

This allotment, the name Fangupo is written on it as it appeared in the map and its area is 2R 33.6p. So take the statutory size of this person as it appears in a sketch attached to this letter for he had already registered on the 1/9/1982.

Survey fees had been paid on receipt 463854 = T$17.50 on the 1/9/82. Once the work is done, prepare the Deed of grant to be registered.

Sgd. Dr. S. Ma'afu Tupou
Acting Minister of Lands

The actual survey of Mosese's town allotment was done on 31 October 1989. According to the 1st Defendant, whose evidence I accepted on this point, the Plaintiff’s father Peni tried to stop the survey, but was told by the Chief Surveyor that he could not do so as it had been ordered by the 2nd Defendant. About November 1989 the 1st Defendant started construction of a residential building on it; and he finished the building in 1990.

8. On 5 December 1989, Sione Mavaetangi, brother of Peni and Mosese and uncle of the Plaintiff, filed an application with the 2nd Defendant for part of Seilala (Plaintiff’s Production 1), in which he stated:
   

Application is respectfully made that you favourably consider granting me a town allotment in Feletoa in the district of Vava'u, and it is known as PART OF SEILALA and the particulars are stated below.

District of Estate holder Name of allotment Name of person last

registered to.

Vava'u Government Part of Seilala ‘Aliki Fangupo.

I hereby declare that I am a Tongan citizen and am already 18 years of age but is not yet a holder of a town allotment and have paid my taxes for the year.

Signature of land holder: Sione Mavaetangi of Feletoa Dated 05.12.1989.

The 2nd Defendant approved that application on 5 December 1989, noting:

1. The allotment was owned and registered under 'Aliki Fangupo of Feletoa 21.09.1928. Fangupo passed away but the land was transferred to his widow, Salote Fangupo, 18.5.1977. Fangupo passed away and was transferred to grandchild would be heir who is Sisitoutai Falepaini, 4.1.1984.
   
2. Falepaini and heir Sisitoutai Falepaini to alter the things of the allotment as follows:
   
3. Heir Sisitoutai Falepaini 1R 13.6p
   
4. Mosese Tukufuka 0R 30p
   
5. Sione Mavaetangi 0R 30p
   

And I approve of this and direct that that would be how the measurements are to be carried out of this town allotment at Feletoa.

At some time, possibly on that occasion in 1989 or earlier, the Plaintiff had a meeting with the 2nd Defendant, Sione Mavaetangi and Mosese Tukufuka, when the subdivision of the allotment on the earlier agreed basis was confirmed.

The Plaintiff’s father Peni Falepaini died in New Zealand in 1996.

9. Mosese Tukufuka’s Deed of Grant was signed and sealed on 15 April 1991 (1st Defendant’s Production 3). Mosese died on 19 October 2003; and his allotment was transferred to his widow Lose Tukufuka on 1 March 2004. Lose Tukufuka died on 16 January 2004 and that allotment was transferred to the 1st Defendant Tevita Kaafe Tukufuka on 2 September 2004.
   
10. The Plaintiff did not return to Vava’u from 1986 to October 2003, when he escorted the body of Mosese back to Vava’u, but did not remain in Vava’u for longer than about a week. The Plaintiff returned to Vava’u again in 2004, and there was a meeting about the land between him, Mavaetangi and the 1st Defendant on 13 September 2004.
    
11. The Summons in this case was issued on 26 November 2004.
    
12. The result of the subdivision to Mosese Tukufuka is that the residual part of the allotment Seilala available to the Plaintiff and Sione Mavaetangi is only 1R 9.6p.
    

Applicable law

Section 170 of the Land Act provides:

Limitation of action.

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.

There have been many cases over the years on the application of that section, which has been strictly applied when the limitation period has expired, and even where the grant of an allotment may at one time have been open to challenge, after the limitation period there is no right of action: Lokotui v Fifita [1992] Tonga LR 18,20 (CA).

Even if a defendant’s occupation of the land was unlawful, with no deeds or documents supported the occupancy, and the applicant holds registered title, that is all irrelevant if the occupation of the land is adverse for over 10 years before it is challenged: Tu’ifua v Tui & Ors [1974-80] Tonga LR 99,100 (PC).

The limitation period does not begin to run a plaintiff has reached his majority (Motuliki v Namoa [1990] Tonga LR 61 (PC)), but that is not relevant in this case as the Plaintiff is now 66, so was in his majority when his right to bring this action first accrued.

Title is not complete without a deed of grant duly registered: Tokotaha v Deputy Minister of Lands & Vea [1923-62] II Tonga LR 159 (PC).

Grounds of decision

While the facts of the case have been narrated as background, it is very clear that the Plaintiff’s right to bring this action first accrued when Mosese’s allotment was formally registered on 15 April 1991. Although Mosese’s son the 1st Defendant had started constructing his house on the land in 1989, and finished building it by 1990, so that adverse possession had begun long before formal registration, the date of formal registration is the date most favourable to the Plaintiff. But even so, this action (which was not brought until 26 November 2004) was not brought within 10 years of that date in 1991, and so is barred by section 170 of the Land Act.

Section 170 is very clear that date from which the limitation period starts to run is the date from which the right to bring the action first accrued, and does not depend on whether or not the Plaintiff had actual knowledge of the adverse possession.

The Plaintiff claimed in evidence that he first discovered the adverse possession when he came to Vava’u (ironically accompanying Mosese’s body back to Vava’u from Tongatapu) in 2003 for the first time since 1986. While the fact that he had only returned to Vava’u then was supported by the 1st Defendant’s own evidence, I was unable to accept the Plaintiff’s evidence (which regrettably was extremely vague) that he only discovered about Mosese’s and the 1st Defendant’s adverse possession at that time. I consider that it is inherently improbable that he was not advised of the adverse possession long before then, especially as I accepted the evidence of the 1st Defendant that the Plaintiff’s father knew about it when he tried to stop the survey proceeding in 1989. But, as stated above, that is not relevant to the legal issue before the Court.

In this case there certainly appear to have been some irregularities, starting with Mosese’s application for the allotment in 1965, even while his mother was still alive. It was also not explained how or why the 2nd Defendant granted Mosese’s application in 1982 when the Plaintiff’s father Peni had already filed an heir affidavit, and without verifying whether the allotment was available for allotment. The Land Registrar effectively accepted that in his evidence. It was also strange that the 2nd Defendant approved the application by Sione Mavaetangi on 5 December 1989, only 5 months after he had ordered the survey of the separate and different subdivision to Mosese on 10 July 1989. At the very lowest that amounted to extremely inefficient administration by the Government administration; and at the highest, if challenged timeously, could have resulted in the grant to Mosese being challenged successfully: cf Vai v ‘Uliafi & Anr [1989] Tonga LR 56.

But a challenge was not made in time and so the Plaintiff has failed in this claim against the 1st Defendant, which is dismissed. That is probably a fair result, as the Plaintiff has now lived in Tongatapu, and not in Vava’u, for 20 years, while his cousin the 1st Defendant still lives on the allotment and works in Neiafu as a teacher. There is no reason why costs should not follow the event and I award costs as agreed or taxed to both Defendants against the Plaintiff.

The Plaintiff’s Counsel, Mr Vaipulu, asked that if the Plaintiff was unsuccessful in his claim against the 1st Defendant, he, the Plaintiff should be registered as holder of the surplus area of Seilala amounting to 1R 9.6p, rather than Sione Mavaetangi. I shall order that the Plaintiff is entitled to that surplus and that the 2nd Defendant should register him as holder of it accordingly. Again that is not unfair on Sione Mavaetangi, who took no steps to attempt to enforce any rights he had following the 2nd Defendant’s decision of 5 December 1989 by joining in this action as an additional plaintiff, far less by taking independent action within the limitation period, although his evidence was that he had been working and living in Vava’u for at least the last 10 years, so I believe he was likely to have known of the position within that time.

31 July 2006

R M Webster
Chief Justice