Vea v Maile [2011] TOLC 8; LA 17 of 2010 (6 May 2011)

IN THE LAND COURT OF TONGA
NUKU'ALOFA REGISTRY

LA 17 of 2010

BETWEEN

SIAOSI VEA
Plaintiff

AND

SIMAILE MANUMANU MAILE
First Defendant

AND

MINISTER OF LANDS
Second Defendant

BEFORE THE LORD PRESIDENT

Mr. Pouono for the Plaintiff
Mr. L. Niu for the 1st Defendant
Mr. A. Kefu for the 2nd Defendant

JUDGMENT

1. By agreement with Counsel this matter was dealt with by written submissions, without a hearing in open Court and without the presence of an assessor. The essential facts are not in issue and the question for determination is purely one of law.
2. Simote Vea who died in 1985 was the registered owner of a town allotment known as Tavahi. He married, first, Fifita Maletina Tufui by whom he had a legitimate son Viliami Komiti 'o Tonga Vai (deceased). Viliami's son is the Plaintiff; in other words, the Plaintiff is Simote's grandson.
3. In 1959 Simote divorced his first wife and married Mele 'Alofaki Lolo. Seven years before the marriage Mele had given birth to Simote's son Simaile Manumanu Lolo, the Defendant. It is not disputed that Simaile's status was legitimated by his parents' subsequent marriage.
4. After Simote's death his widow Mele became entitled to a life estate in the allotment by operation of Section 80 of the Land Act (Cap 132 - the Act). The First Defendant lived with his mother on the allotment until her death in 2002.
5. The Plaintiff has, for many years, lived in New Zealand. According to paragraph 13 of the Statement of Claim he did not become aware that Mele had died until "Sometimes [in] 2009/2010". At about the same time, he become aware that some months after his mother's death the First Defendant had lodged a claim to the allotment as heir under the provisions of Section 87 of the Act. On 22 May 2003 the Second Defendant registered the property in the First Defendant's name.
6. The Plaintiff's case is that under the Rule of Succession to allotments contained in Section 82 of the Act he was entitled to inherit the allotment. He says that the First Defendant misled the Second Defendant into registering the property in his name by concealing the Plaintiff's right to inherit.
7. The First Defendant does not dispute the Plaintiff's superior claim under Section 82. He says, however, that the Plaintiff lost his right to claim the allotment as heir when he failed to present his claim within 12 months of the death of Mele as is required by Section 87 of the Act. Mr Niu argued that neither the fact that the First Defendant did not disclose the Plaintiff's existence to the Second Defendant nor the fact that Mele's death did not come to the Plaintiff's knowledge until after the 12 months period specified by Section 87 could have any effect on the validity of the registration of the property in the name of the First Defendant in 2003.
8. The Second Defendant's case as pleaded is that in the absence of any claim by the legal heir within the 12 month period the property reverted to the Crown by operation of Section 87; it was then the subject of a fresh grant to the First Defendant under the provisions of Section 88. In his written submissions Mr Kefu emphasised that the only claim to the property received by the Second Defendant was that lodged by the First Defendant. Citing authority, be submitted that the 12 month period had to be strictly complied with. Since, as a matter of fact, the Plaintiff had not lodged his claim within the specified period, whatever rights he might theoretically have possessed, had been lost.
9. In my opinion there are three matters that must separately be considered. They are:
   • (i) the finality of the 12 months period;
   • (ii) the status of the property after the 12 months period had expired; and
   • (iii) the effect of fraud, if proved.
10. Vakameilalo v Vakameilalo & Another [1989] Tonga LR 98 is authority for the proposition that the 12 month period does not begin to run from the moment that its commencement comes to the attention of a claimant, even a rightful claimant. In the words of the Privy Council:
    • "Greater injustice would result if there was no limit on the time within which an heir could exercise his rights and uncertainty would reign".
11. In paragraph D of his written submissions Mr Kefu suggested that the First Defendant's claim to be the heir (which admittedly he was not) could be viewed as an application for the grant to him of the property after its reversion under Section 87. As already noted, he emphasised the fact that only the First Defendant made any claim of any kind to the property.
12. Given that there was only one claimant to the property and in the absence of anything to suggest that the Second Defendant was aware that the claim before him was either misleading or disputed, my view is that the Second Defendant was entitled to presume that the claim was regular. The admitted fact that the First Defendant had lived on the property for many years was also relevant. In the circumstances of this case my view is that whether the transactions leading to the grant to the First Defendant are regarded as being an allowed claim or a regnant following reversion, the result, insofar as the Plaintiff is affected, is the same. Given the form of the Deed of Registration I incline to the view that what occurred was an allowed claim rather than a regnant of a surrendered allotment but, for the reasons I have given, I do not think a firm finding of fact is necessary.
13. The final question is the effect of fraud. As noted in paragraph 1 above this matter was dealt with on the papers. In paragraph 9 of the Statement of Claim fraud was pleaded. The particulars do not however disclose any fraudulent behaviour. Paragraph 9 was denied by both Defendants.
14. Mr Pouono helpfully referred me to a passage from Halsbury 4th Edition Vol 31, para 1059 quoted by Ford J in Tukuafu v Tupoumalohi [2002] Tonga LR 268, 275. The difficulty however for the Plaintiff, as I see it, is that there is nothing to suggest that the First Defendant was aware that he was not in fact the heir to the property. The Plaintiff's case is that he was not aware that his grandfather's second wife had died until about 8 or 9 years after the death had occurred. It seems to me quite possible, by the same measure, that the First Defendant was under the impression that his uncle had also passed away. Alternatively, he may simply have misunderstood the legal position. If either of these possibilities is granted, fraud is not proved.
15. There is a further consideration. It is not only the existence of the fraud which must be proved; it must also be shown that the nature of the fraud was such as to affect the outcome of the rival claims. In the present case, even if fraud on the part of the First Defendant is conceded (which it is not) the fraud did not operate to the disadvantage of the Plaintiff for the reason that he did not, as a matter of fact, submit any competing claim within the operational period of Section 87.
16. As a general rule, limitation periods do not run in the face of fraud. But the fraud must have been the reason the claim was not presented within the limitation period. If, for example, it had been shown that the First Defendant deceived the Plaintiff by promising that he would present a claim on his behalf but he had not in fact done so, with the result that by the time the Plaintiff came to know what had happened, the operational period had expired, then it would be open to the Plaintiff to argue that he should not be time-barred. However, in this case, no such argument was attempted.
17. In my opinion, the Plaintiff finds himself deprived of the right to the property as a result of his own default, nor the default either of the First or of the Second Defendant. Accordingly the Plaintiffs claim fails and is dismissed.
    

NUKU'ALOFA: 6 May 2011
PRESIDENT