HRH Prince Lavaka v Tafolo [2000] TOSC 30; L 0020 2000 (24 August 2000)

IN THE SUPREME COURT OF TONGA
LAND JURISDICTION
NUKU'ALOFA REGISTRY

NO.L.20/00

BETWEEN:

HIS ROYAL HIGHNESS PRINCE LAVAKA
Plaintiff

AND:

1. SIONE FEKAU TAFOLO
2. MINISTER OF LANDS, SURVEY AND NATURAL RESOURCES
Defendants

BEFORE THE HON. CHIEF JUSTICE WARD IN CHAMBERS

Counsel: Mr Garrett for plaintiff/applicant
Date of Hearing: 15 August 2000.

RULING

The applicant, who is the present holder of the noble title of Lavaka, seeks leave ex parte to commence an action out of time notwithstanding the provisions of section 170 of the Land Act.

I refused the application and said I would give brief reasons in writing, I now do so.

Section 170 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 which 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."

The applicant succeeded to the title of Lavaka on 14 July 1980, the title having been vacant since the death of the previous Lavaka in 1964. Shortly after succeeding to the title, the applicant went overseas and returned in 1985. On his return, he discovered that a tax allotment known as Heukalae on his estate had been vested in one Siaosi Tafolo, the brother of the late Lavaka's wife, one month after she surrendered it in 1978.

Although the applicant at the time considered that this registration should not have occurred, he took no action because the land was being used for farming purposes. He was also unaware of the time limit imposed on such actions by section 170.

Recently he has discovered that the land is now occupied by the proposed defendant, Sione Tafolo, the heir of Siaosi Tafolo, and that he is using the land for quarrying operations. As the estate holder, it is the applicant's duty to take care of the people and the land in the area and he considers the quarrying is destroying the land for the future.

He has asked Sione Tafolo to vacate the land and has been met with a refusal.

The action he wishes to bring is a challenge to the validity of the registration of the land in the name of Siaosi Tafolo by the, then, Minister of Lands. That occurred in August 1978 and so this action is well outside the 10 year period of limitation imposed by section 170.

He seeks to bring the action because of alleged misfeasance by that Minister of Lands and because there have apparently been a number of similar cases where other noble title holders have lost pieces of their estates in similar circumstances. It is therefore a matter of fundamental importance to be able to correct such matters.

I have every sympathy with the applicant. If, as he says, this problem has arisen in other cases where, because a title has been left vacant for some years or for any other reason, there has been an incorrect or improper disposal of part of a noble's estate which has only come to his attention after the time limit under section 170, there should be some provision to correct it. The law should not unreasonably or arbitrarily hold a man out of his rights. At the same time, the law has always protected the right of a lawful land holder to peaceful occupation of his land.

I do not, at this stage, know the full facts and cannot say whether of not this action would have succeeded, but the limitation imposed by section 170 prevents it ever being tested in court. Unfortunately the court can only apply the law as it stands. If there is to be any modification of the law, that is a matter for the Legislative Assembly. If there was a wrong, the time to remedy it has gone.

The provisions of clause 20 of the Constitution against retrospective legislation may effectively prevent this particular case being solved in this way but Parliament may consider it appropriate to consider some provision to prevent the repetition of this problem in the future either by amendment of the Land Act or by laws to control the use of land for purposes not connected with farming. Alternatively, some control may be effected by bringing the regulations made under section 22 up to date.

The days where there is more than sufficient land to go round are fast passing. As pressure for land continues to increase, so does the estate holder's duty to preserve his land for future generations to use for the purposes envisaged by the drafters of the Land Act. Such changing times may require changes in the law but, as I have said, that is not a matter for the court.

The terms of the present section are clear and the application must be refused.

NUKU'ALOFA: 24^th August 2000.

JUDGE OF THE LAND COURT