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Samuelu v Nukulaelae Community [2004] TVHC 4; Land Appeal Case 11of 1998 (7 April 2004)

IN THE HIGH COURT OF TUVALU
LANDS APPELLATE JURISDICTION

Case No: 11/98

Between:

Valoa Samuelu
Appellant

And:

Nukulaelae Community
Respondent

BEFORE THE CHIEF JUSTICE

Ms. Elisala for Appellant
Mr. Ulika for Respondent

Hearing: 5 and 7 April 2004
Ruling: 7 April 2004

Ruling

On 5 September 2001 an appeal was filed with the High Court (there being no senior Magistrate at that time) from a decision of the Lands Court Appeal Panel sitting in Nukulaelae, which had been delivered nearly four years previously on 5 December 1997. This was followed by an application to set aside a previous decision of Chief Justice Sir Gaven Donne in the same case delivered on 31 July 1999 in which, this Court was told, he had struck out the appeal from the Panel’s decision in December 1997 on the ground that the appeal had been lodged out of time.

I heard the application on 26 September 2003 when the Court was advised by counsel for the appellant that the dates on the papers showed that the Chief Justice had been misinformed of the relevant dates. The appeal had, in fact, been filed on 18 December 1997 and was, therefore, lodged in time.

The order of the Chief Justice would have been interlocutory and so I set it aside and ordered that the appeal on the original grounds filed on 18 December 1997 be listed for hearing at this session of the High Court.

There were few papers at the hearing on 26 September 2003 because counsel had not been able to acquire them but they were collected together in preparation for this hearing. Included in them is the judgment of Sir Gaven dated 31 July 1999 and it is attached to a letter from the High Court Registrar which accompanied the decision when it was sent to the parties. The letter refers to a hearing on 26 July 1999 and to the decision being delivered on 31 July 1999.

In his judgment the learned Chief Justice refers to the appeal having been filed out of time (and to that extent would appear to have been incorrect) but he also points out that he heard the evidence. He continues by stating that he finds the Island Council was correct and that it had the right to decide where the appellant should build his house (the central point of the case throughout). He concludes, "The appeal is declined."

That judgment makes it perfectly clear that the appeal was heard and adjudicated by Sir Gaven and was not simply an order to strike out. In those circumstances this court is functus in the case. I set aside my order re-instating the appeal and dismiss the action. The finding of the Lands Court Appeal Panel, which in turn upheld the decision of the Lands Court was confirmed as having been correct by the decision of this Court on 31 July 1999.

I would add one further comment. By section 26 of the Native Lands Act, any person aggrieved by a decision of the Lands Court Appeal Panel has three weeks to appeal to the Senior Magistrate’s Court and a similar period should he further appeal to the High Court.

It would appear that, in this case, the notice and payment were given to the Island Executive Officer on Nukulaelae. Whilst I see the convenience of that, the Act does not allow that as proper notice. If that method is used, the appeal will only be in time if the Island Executive Officer passes it to the Clerk of the appellate court within the three weeks period allowed.

Unless and until the law is changed, the requirement is that notice of appeal and the fee, if any, must be paid to the Registrar of the appellate court within three weeks of the decision appealed from. As with all actions for which a timetable is provided, the clerk must, immediately on receipt, endorse the documents as having been received with the date and time of receipt.

Dated: 07th day of April 2004.

CHIEF JUSTICE