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Teagai v Nelu [2004] TVHC 6; Land Appeal Case 2 of 2004 (8 October 2004)

IN THE HIGH COURT OF TUVALU

AT FUNAFUTI
Lands Appellate Jurisdiction

Case No: 2/04

Between:

Levi Teagai
Appellant

And:

Eliu Nelu
Respondent

BEFORE THE CHIEF JUSTICE

Elisala for appellant
Malalau for respondent

Hearing: 7 October 2004
Judgment: 8 October 2004

Judgment

The respondent in the present case, was the appellant in a case before the Lands Court Appeals Panel heard on 13 April 2004. At the conclusion of that hearing, the Panel stated orally that the appeal was successful and advised the present appellant of his right to appeal within three weeks.

The appellant sought a copy of the reasons for the decision but they were not signed by the Panel until 14 May 2004. He obtained a copy on 17 May 2004. He paid the court fee to the Registrar of the Senior Magistrate’s Court on 19 May 2004 and then filed an application for leave to appeal out of time together with an affidavit in support.

The Senior Magistrate refused the application on the basis that an application to extend the time should have been made within the three weeks allowed for appeal and, as that had started to run on 13 April, that period had expired.

This is an appeal against that decision.

The right to appeal from a decision of the Appeals Panel is found in sect 26 of the Native Lands Act. The relevant provisions are:

"26. (1) Any person aggrieved by a judgment, decision or order of ... the Appeals Panel ...may appeal against the same ... to the Senior Magistrate’s Court if, within 3 weeks of its being given or made, notice in such form and on payment of such fee as may be prescribed has been given to the Clerk of the Senior Magistrate’s Court.

...

(3) The Senior Magistrate ... may extend the time within which notice of appeal under this section is required to be given."

There are two grounds of appeal. I do not set them out but they raise two questions; first, whether the power to extend time under section 26(3) can be exercised on an application made after that time has expired and, second, exactly when the time in section 26 (1) starts to run if, as here, there was an oral decision given followed some time later by written reasons – a practice counsel advise the court is common in the Lands Court Appeals Panel.

On the first question, it is clear that the power given by section 26(3) is to extend the time. Once the time allowed has expired it cannot be extended. An application made after that has occurred would effectively be an application to renew not to extend. I am satisfied the Senior Magistrate was correct to rule that, once the period allowed had expired, he was not able to extend it.

This appeal therefore turns on the second question. Did the time for appeal run from the 13 April when the result was announced orally or from14 May when the written judgment with reasons was signed and sealed?

In terms of common sense and practical application, the answer would be that it ran from the second of those dates. The alternative reading would mean that the losing party has to give notice of appeal before he knows whether he has any grounds for an appeal. That would be an unfortunate consequence and would mean the rules are encouraging the filing of unnecessary and possibly worthless appeals.

In the present case, there is no dispute that the result given orally on 13 April gave no reasons. It was a bald statement which party had won. The reasons for that decision were only given in the written judgment on 14 May. The Panel must give reasons and, until they have done so, the case has not been concluded.

The reason judgments are sealed is to ensure the parties have a written document which leaves no room for ambiguity or confusion over what has actually been decided. It is only when it is sealed that the case is concluded and the tribunal is functus officio.

If the decision is to be appealed, it is the sealed judgment which is appealed from and it has long been the position that sealing is essential to give the clarity and certainty of meaning needed to challenge or accept it.

Counsel has helpfully directed the Court’s attention to the following passage from International Financial Society v City of Moscow Gas Company [1877] UKLawRpCh 327; [1877] 7 ChD 241:

"Sealing is only required where it is necessary to enable a person to see what he or she is appealing from. The judgment or order is required to be perfected so that he or she may see exactly the final form which it takes ..."

Many other authorities have made the same point.

It is not uncommon for a court to announce the result of a case with the rider that it will publish its reason in writing later. There are sometimes good reasons why it is advisible to tell the parties the result immediately but the judgment is not perfected and sealed until the reasons for the decision have been published. Any time for appeal starts to run from the date of that publication.

In the present case, I rule that the declaration of the result without any reasons for the decision was not the judgment. The judgment was the sealed document stating the reasons for the result. The time to appeal under section 26(1) ran from that date. The notice of appeal was, therefore, given in time and the appeal should proceed before the Senior Magistrate.

The appeal is allowed and the case is remitted to the Senior Magistrate with a direction that the appeal shall be heard.

I see that no grounds have yet been filed. In any application for extension of time to appeal, one of the factors the court must consider is the likelihood of success and that cannot be assessed without a consideration of the grounds of appeal. The application in this case should have been accompanied by the proposed grounds of appeal.

However, as the appeal has succeeded in showing that the application was not necessary, the omission causes no problem but I direct that the appellant shall file his grounds of appeal against the Appeals Panel decision within 14 days of this judgment.

Dated: 08th day of October 2004

CHIEF JUSTICE