IN THE COURT OF APPEAL OF TONGA
ON APPEAL FROM THE LAND COURT
NUKU’ALOFA REGISTRY

APPEAL NO. CA 11/2002

BETWEEN:

FALETUI FUNGAVAI
HASILONI FUNGAVAI
Applicants

AND:

LANGILANGI TUITU’U NIUTUPUUA
MINISTER OF LANDS
Respondents

Coram	: Burchett J
Tompkins J
Beaumont J

Counsel: Mr Sione Kengike for the applicants
Mr ‘Etika for the first respondent
Mr. Kefu for the second respondent.

Date of hearing: 18 July 2002
Date of judgment: 23 July 2002

JUDGMENT OF THE COURT

INTRODUCTION

[1]	This is an application for leave to appeal out of time from a Judgment of the Land Court (Ward CJ). The application is made in these circumstances.

[2]	The applicants, Faletui Fungavai and Hasiloni Fungavai filed, as plaintiffs, a writ of summons and statement of claim in the Land Court on 5 December 2000, naming the respondents, Langilangi Tuitu’u Niutupuua and the Minister of Lands, as defendants. The principal relief sought in the statement of claim was as follows:

“(a)	for an order for expenses against the defendants;
(b)	for an order to cancel subdivided (sic) of 1a. from the tax allotment (Tukupeau) at Niutoua.
(c)	for an order to cancel the registered (sic) by the first defendant and his father Pita Niutupuua on the same day (14, January 1986) the said tax allotment Tukupeau at Niutoua of 7a,1r,36.7p.
(d)	for an order to restrain all people permitted by the first defendant to stay in the tax allotment (Tukupeau);
(e)	for an order either the first plaintiff to succeed as a widow or the second plaintiff entitled to succeed as a heir to the said tax allotment (Tukupeau);
(f)	interest on expenses at the rate of 10% from 1st, December 2000 to the date of judgment. …”

[3]	The grounds for the grant of this relief were not clearly pleaded, but appeared to be:

1.	A breach of contract by the Minister, which was alleged to have occurred on 14 January 1986; and

2.	Negligence by the Minister, which was also alleged to have occurred on 14 January 1986.

[4]	Amongst other defences to these claims, a special defence was pleaded by the defendants, relying on the limitation provisions of s170 of the Land Act, as follows: 

“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.”

[5]	The claim came before Ward CJ for hearing on 9 January 2002. His Honour noted that every event alleged in the statement of claim was said to have occurred more than 10 years before the statement of claim was filed, and that, in particular, the actual registration which the plaintiffs sought to challenge, occurred on 14 January 1986; and that this was the latest date mentioned in the pleading. Accordingly, his Honour ordered that it was appropriate that the limitation issue be determined as a preliminary question.

[6]	For the reasons explained below, Ward CJ upheld the limitation defence, and, as a consequence, on 9 January 2002 ordered that the principal proceedings be dismissed, giving reasons for that order on 14 January 2002.

[7]	On 7 March 2002, although then out of time, the plaintiffs purported to file a notice of appeal against the Land Court judgment. On 9 April 2002, the plaintiffs, accepting then that they were out of time, filed their application for leave to appeal out of time, now before us.

[8]	Upon the application for leave to appeal out of time being called on for hearing, we indicated to counsel for the applicants that we would hear argument, as on an appeal, without at that stage deciding whether we would grant leave.

[9]	In order to understand the nature of the appeal which the unsuccessful plaintiffs seek to bring, it will be necessary now to explain the Land Court’s reasons for upholding the limitation defence.

THE LAND COURT’S REASONS FOR JUDGMENT 

[10]	Having noted that the claims made in the statement of claim were “almost incomprehensible”, Ward CJ said:

“[I]t 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.”

[11]	His Honour then explained his understanding of the nature of the claim sought to be made by the plaintiffs, on the facts they allege, to the following effect:

•	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. 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 Hon. Tu’ipelehake suggested that the son of the oldest son should be the heir, and could be represented by a trustee. That son, the second plaintiff, 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. The land was, at that time, being used by 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. Either the affidavit lied about the death of the first defendant’s father, or it persuaded the Minister to register Pita as the landholder posthumously.

[12]	The case thus sought to be made by the plaintiffs was that this registration was done in contravention of the widow’s interest in the allotment, and that she should have the land returned to her, including those parts now leased to others. In this connection, Ward CJ noted the provisions of Art.113 of the Constitution and s80 of the Land Act, respectively conferring the widow’s succession entitlement, and her life estate in an allotment.

[13]	But his Honour held, by reference to s.170 of the Land Act, that the time for seeking such a remedy had passed. His Honour concluded that the ten year limitation period, which runs from the time at which the cause of action arose, ran from the time when the land was registered, or, “arguably”, even earlier, in 1971, upon the subdivision and leasing of part of the ‘api then. The first plaintiff, as widow, could have brought an action seeking to rectify the registration at any time up to 13 January 1996. But having not done so, the primary Judge concluded that s170 now prevents the Court from considering such a claim.

THE GROUNDS OF THE PROPOSED APPEAL

[14]	We will not attempt to summarise all of the grounds of the proposed appeal. It is sufficient to say that they are comprehensive, and that they include a complaint about the procedure, adopted by his Honour, of directing a preliminary question. The grounds of appeal also include a contention that “Section 170 cannot be applied to any unlawful act.”

CONCLUSIONS ON THE APPLICATION FOR LEAVE TO APPEAL OUT OF TIME

[15]	It is true that when, on 7 March 2002, the plaintiffs filed their notice of appeal, the time for appealing had not long elapsed. And, if the plaintiffs were able to show us that, arguably at least, there was some prospect that their appeal would succeed, we might well have favourably considered their present application. But, in our view, any appeal would have no prospect of success.

[16]	In the first place, as a matter of procedure, the Land Court was entirely justified, given the expense that might otherwise have been thrown away, in directing the preliminary question.

[17]	Secondly, on the substantive question, it is plain beyond argument that s170 applied on the facts alleged by the plaintiffs. It is clear that they could have sued on their present claims in January 1986, almost fourteen years earlier than they did. Moreover it appears that no other reason exists why s170 should not bar this claim.

[18]	Accordingly, we refuse leave to appeal, with costs.

Burchett J
Tompkins J
Beaumont J