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Simeona v Nelu [2006] TVHC 4; Land Appeal Case 1 of 2004 (28 April 2006)

IN THE HIGH COURT OF TUVALU
AT FUNAFUTI
Land Appellate Jurisdiction

Case no 1/04

Between:

Mate Simeona
Appellant

v

Tenene Nelu,
First Respondent

And:

Tauese Tusi
Second Respondent

And:

Attorney General
Third Respondent

BEFORE THE HIGH COURT

Barlow for appellant
Talu for respondents

Hearing: 5 April 2004
Judgment: 28 April 2006

Judgment

This case comes to the High Court on a reference by the Senior Magistrate.

The present appellant had appealed to the Senior Magistrate from a decision of the Lands Court Appeals Panel. The Senior Magistrate sought an answer to the reference in order to decide the appeal. The reference relates to the use of the Cadastral map prepared in 1982 in determining this land case and arose from the Appeal Panel’s finding that "the issue in the case be determined by reference to the Cadastral map which was produced in 1982".

The question to which an answer was required had not been specified and I stated it to be whether the Lands Court Appeal Panel is entitled to use the Cadastral map to solve a dispute over native owned land where the maps appear to conflict with the information recorded in the Native Lands Register. The Court was advised that the maps had been used in that way in some of the islands of Tuvalu and not, or not universally, in others.

The Court was told that Parliament was considering passing legislation to cover this issue and, possibly, whether it might be used on some islands and not on others. I adjourned the case to enable the Attorney General to request the Government or the Minister of Lands to advise the Court:

1. whether Parliament has already passed or approved any motion or given any direction which is binding on the courts in respect of the Cadastral maps;
2. whether the Government intends to present any bill in respect of the Cadastral maps and, if so, whether such bill will propose the use or the disuse of those maps; and
3. whether there is an intention to take any executive action in terms of regulations or rules regarding the use of the maps.
   

The lack of any definite information has resulted in a number of adjournments but no clear answer from the Government except to the first request to which the answer is "No". Having now sought and received submissions on the matter I feel the Court must give its answer and I now do so.

The Lands Court is established by the Native Lands Act (Cap 22) and all persons who own or are eligible to own native lands shall be subject to the jurisdiction of the Lands Court; section 11. Under the marginal heading "Certain powers of lands courts relating to land", section 12 provides;

"12. Subject to sections31(1) and 33 [which deal with native leases and are not relevant to this case] the court shall hear and adjudicate in accordance with the provisions of the Lands Code or, where the Code is not applicable, the local customary law, all cases concerning land, land boundaries and transfers of titles to native land registered in the registers of native lands and any disputes concerning the possession and utilisation of native land."

The Land Code was declared to be the Code of laws governing native land rights in Legal Notice 27 of 1962. Despite an amendment in 1988, LN12/88, there has been no attempt to add any provision relating to the Cadastral maps. Titles are set out in the registers of native lands which are kept as a requirement under the provisions of the Act.

Counsel for the appellant submits that is effectively an end of the matter. There is no mention of the cadastral survey in the Code and it cannot have acquired the status of local customary law even in the islands where it has been used. As it has no status under the Act it cannot be a basis for challenging the registers

The respondents submit that the provisions of section 16 of the Interpretation Act cover the use of the maps. That section provides that, when interpreting the meaning of a written law, any court of competent jurisdiction may refer to any other source in addition to the written law itself if it thinks fit to do so having regard to the requirements of justice.

I accept that provision covers any court when it is attempting to interpret a written law but that is not this case. Here the use of the maps by the Appeals Panel was to determine the factual situation of the boundaries of and the title to the land in question and not the meaning of the statutory provisions themselves.

The appellant suggests that the maps are not admissible in evidence in any event. This Court has been given no information about the manner in which they were produced save that they were the result of a project endorsed by Cabinet and undertaken by UNDP between 1980 and 1988 with the main object of determining the land boundaries and then to demarcate them by maps. If they are to be admissible in evidence their provenance will need to be properly established. On their face, they appear to be based on information which was supplied from an unspecified source and may not have involved any of the parties to the action.

Counsel for the respondents accepts that there is no legal recognition of the Cadastral map but suggests it is new evidence which the appeal panel is entitled to use. He suggests that, although section 12 prevents the Lands Court from using those maps, the powers given to the LCAP to adduce new evidence means it can use the maps even though they were not available to the lower court in determining the issue.

He relies on section 25(3)(d):

"(3) A member or members of the Appeals Panel sitting as an appellate tribunal under this Ordinance shall have full jurisdiction over the whole proceedings as if those proceedings had been instituted and prosecuted before the member or members as a court of first instance and may re-hear the whole case and without prejudice to the generality of the foregoing may –

(d) allow or require new evidence to be adduced either by oral examination in court or by affidavit ..."

I cannot accept that an appellate court can have a power to consider an appeal on a basis that is denied the court from which the judgment is being appealed. To do so there would need to be clear statutory authority and I do not accept section 25 is such an authority.

More important is the provisions of section 4 that titles to native lands as evidenced by a register of native lands are indefeasible. If the register records a title, I fail to understand how it is can be challenged by maps which are not recognised by or referred to in the Act and the manner in which they were made is unproved.

I am satisfied that the Lands Court is not entitled to use the Cadastral maps to determine cases before it relating to the ownership of native land even if the issue in the case is the precise location or extent of the boundary.

I return the case to the learned Senior Magistrate with a direction that he determine the appeal on the basis that the Lands Court was not entitled as a matter of law to consult the Cadastral maps and the LCAP was similarly restricted.

Before leaving this case I feel I should go a little further on this topic. It has been stated to the Court that some cases have been decided on the basis of these maps and counsel has suggested that this decision could mean all those decisions are null and void. Whether that is the case or not will depend on an appeal and, where they have not been appealed in time, the court should be reluctant to allow a late appeal on this ground only.

If the maps can be incorporated into the Native Lands Act or the Lands Code, it may at last give a clear and indisputable manner of protecting the rights of land owners. However, if that is to occur, there will have to be legislation to allow it and to prescribe the manner in which they may be used and their evidentiary force when they are. The present state of the law as shown in this case is unsatisfactory and Parliament is urged to take positive and proper steps to introduce these maps in a manner which is consistent with the Native Lands Act and is acceptable to all land owners.

Dated: 28th day of April 2006

CHIEF JUSTICE