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Nelu v Simeona [2007] TVHC 4; Land Appeal Case 2 of 2007 (26 October 2007)

IN THE HIGH COURT OF TUVALU
AT FUNAFUTI
Land Appellate Jurisdiction

Land Appeal case no. 2/07

Between:

Tenene Nelu
First Appellant

And:

Tauese Tusi
Second Appellant

And:

Attorney General
Third Defendant

And:

Mate Simeona
Respondent

BEFORE THE HIGH COURT

S Earl for appellants
J Grover for respondent

Hearing: 20 October 2007
Judgment: 26 October 2007

Judgment

This is an appeal from the decision of the Senior Magistrate sitting on appeal from the Lands Courts Appeal Panel and delivered on 22 August 2007.

The original notice of appeal was filed on 19 September 2007and was on the single ground that the Senior Magistrate had erred by not recognising the Native Lands (Amendment) Act 2006 in his judgment.

Section 26 of the Native Lands Act provides a right of appeal within three weeks of the decison. Clearly the notice of appeal was out of time.

On 19 September 2007, the Senior Magistrate wrote a memorandum to counsel for the appellant pointing out that the appeal was out of time and stating that it would not be listed for hearing in the High Court. Counsel for the appellant then filed another notice of appeal against that decision on the two grounds that the Senior Magistrate was wrong to refuse to list the appeal and that he should not have made such a decision without hearing counsel.

On 11 October 2007, notice of change of counsel was filed and an amended notice of appeal filed seeking to appeal against both decisions of 22 August and 19 September 2007. The grounds were, in respect of the first decision, that the Senior Magistrate failed to recognise the 2006 Amendment Act and, in respect of the second decision, that he erred because he dismissed the appeal when he was functus officio. Accompanying that notice was an affidavit from another counsel in the Attorney General’s office explaining that the failure to file the original appeal in time was the result of counsel’s oversight and that the court had been warned of the appeal in good time.

At the hearing, counsel for the third appellant pointed out that the original appellants were not represented and suggested that they should be represented. He pointed out that, although he had previously represented them, it was now the policy of the Attorney General’s department not to do so.

I have indicated that I shall deal with the ground relating to the Amendment Act first and then counsel can take instructions from the first and second appellants whether they still wish to proceed with their appeal.

This matter had previously been appealed to the Senior Magistrate and he directed that it be returned to the Panel to consider some specified questions. It is not necessary to go into those.

The answers resulted in another appeal from the Panel to the Senior Magistrate. He requested the opinion of the High Court on the question of the use of the maps from the cadastral survey.

In a judgment dated 28 April 2006 I noted:

"Counsel for the respondents accepts that there is no statutory or 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 Appeals Panel to adduce new evidence [under section 25(3)(d)] means it can use the maps even though they were not available to the lower court in determining the issue. ...

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

I am satisfied that the Land 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 Appeals Panel was similarly restricted."

The Court then recommended that Parliament consider legislating to allow the use of these maps.

In the present appeal, the learned Senior Magistrate quashed the decision of the Panel on the ground that the cadastral map could not supersede the lands register. At the time he accepted that the use of cadastral maps had been the subject of legislation in the form of the Native Lands (Amendment) Act 2006 but that, although it had been passed and had received the Governor General’s assent, there had been no date appointed on which it would come into force.

That has been confirmed in today’s hearing. The official copy of the Act has been produced to the Court and it shows the date of commencement is written in as 21 September 2007.

That is an end of the matter in respect of this ground. The Senior Magistrate could not have taken account of a law that had not been brought into effect and this Act did not come into effect until a month after his judgment.

I accept that the terms and scope of the Act appear to leave a number of issues unresolved. No doubt they will become relevant in future cases but this appeal is against a decision of the court made when there was no such act. The subsequent commencement of the Act cannot alter the decision already correctly given.

The appeal on the first ground is dismissed.

I direct counsel for the appellants to consult with the first and second appellants and take instructions on whether or not they wish to pursue this appeal further. If they do he must represent them and consider the appropriate steps.

Dated: 26th day of October 2007

Chief Justice