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Taupule v Iosefa [2009] TVHC 1; Civil Case 01 of 2009 (26 October 2009)

Civ. Case no. 1/09

IN THE HIGH COURT OF TUVALU
AT FUNAFUTI

Civil Jurisdiction

Between:

SUKA TAUPULE
Appellent

V

MATANILE IOSEFA
First Respondent

KANAE SAKUA
Second Respondent

SEI KANAE
Third Respondent

BEFORE THE CHIEF JUSTICE

Kofe for appellant
No appearance respondents

Hearing: 21 October 2009
Judgment: 26 October 2009

Judgment

1. This is an appeal from the decision of the learned Senior Magistrate delivered on 21 January 2009. The grounds are:

1. That he erred in law and or in fact in failing to take into account the Orders of the High Court (in case No 2 of 1995) dated 8th February 1995

2. That he erred in law and or in fact in failing to consider the two letters of the President of the Land Court dated 16 May 2008 and 19 May 2008.

2. It is necessary to consider the background facts of the case in order to understand those grounds. The case before the Senior Magistrate was an application under section 56 of the Native Land Act for the respondents immediately to vacate a house in the property known as Mulipa Tai 89(f) and that the respondents pay compensation under section 50(2). At the hearing the second limb was not pursued.

3. All the respondents had been served with notice of the hearing before the Senior Magistrate but had not attended. The same situation arose at the hearing before this Court.

4. The appellant’s case at the hearing before the Senior Magistrate was that she was the registered proprietor of the land. It had initially been owned by Elisaia but, in 1973, he exchanged the land with the appellant’s grandmother, Lomiga. However, in 1994, a descendant of Elasaia, Mose Elisaia, built a house on the property. That was taken to the Land Court and the Lands Court Appeal Panel in 1994 and from there to the High Court in 1995. The High Court confirmed that the decision of 1973 must stand.

5. Notwithstanding that result, in 2003 Mose Elisaia sold the house to the first respondent who has subsequently let it to the second and third respondents. They pay him the rent and are still his tenants.

6. The Senior Magistrate heard the case on 14 January 2009 and gave his judgment on 21 January 2009. He raised three questions which he considered had not but should have been answered and refused the motion. The questions he raised were in summary:

1. In the body of the 1995 judgment there was no reference to the fact that the exchange of lands in 1973 was between Elasaia and Lomiga nor that the lands involved were those claimed by the appellant to have been exchanged, namely Malugaata 57(O) and Mulipa Tai 89(f).

2. The copy of the 1995 judgment ends with the words, "The motion must be granted" and was therefore not an appeal as the appellant deposed in her affidavit

3. The 1995 judgment was neither signed by the judge nor sealed.

7. There is substance the Senior Magistrate’s concern. No record of the 1973 decision was available neither was there any record produced of the 1994 Lands Court or Lands Courts Appeal Panel decisions. The judgment of Donne CJ in 1995 does not refer to the land and is simply a refusal to allow an appeal against an unchallenged decision from so many years previously. The judgment is not sealed and the Senior Magistrate correctly referred to the need for such sealing.

8. The appellant tried to remedy these matters. He produced the order made by Donne CJ following this judgment. It is clear from that document that the action was by way of an originating summons and the terms of the Order sought were that (a) the Lands Court and Lands Courts Appeal Panel decision of 26 June and 18 August 1994 respectively be quashed on the ground of want of jurisdiction, (b) that the decision in case 2 /73 be restored and (c) that the Land Register be amended accordingly. It is endorsed "Order granted in terms sought" and is signed by the Chief Justice and dated 8 February 1995.

9. Counsel for the appellant also produced letters from the President of the Funafuti Lands Court. I set them out in full. The first is dated 16 May 2008:

"Subject: Exchange of land between Suka and Elisaia

I would like to confirm on behalf of the Lands Court that Suka’s land was exchanged with Elisaia’s land. Here are the details of the exchange:

Lomiga’s land – Malugaata – plot No 57(O)

Lands Court Case no – 2/73, Date: Tuesday 9 January 1973

Elisaia’s land – Mulipa Tai – plot no 89(f)

Those are the details regarding the exchange of land between the two parties"

10. The next was dated 19 May 2008:

"I would confirm on behalf of the Lands Court that Mose Elisaia’s house is located on the land known as Mulipa Tai plot number 89(f)"

11. Finally there is a letter dated 24 September 1996 from the, then, acting Town Clerk of the Funafuti Town Council addressed to the, then, People’s Lawyer which clearly explains the ownership of the various plots named Mulipa Tai. It is unnecessary to set it out in detail but it confirms that the plot 89(f) is registered Lomiga (Suka) and that it was received from Elisaisa. It should also be noted that the letter was copied to both the appellant and to Mose Elisaia.

12. As I have stated, the Senior Magistrate was correct to note the problems with the evidence but, where the cases referred to are very old and the records are not complete, it is not appropriate simply to refuse an application on the basis of procedural problems. The Court is aware of the problems of record keeping in the past in Tuvalu and a party should not be disadvantaged because the original is not available.

13. I consider the correct approach in such a case is to try and ascertain the true position on the available information and to decide whether on the whole of that evidence the appellant has established her case. It does not appear the Senior Magistrate reached that stge.

14. The answers to his questions are:

1. Donne CJ does not, as the Senior Magistrate points out, name the land which was the subject of the claim but he refers to the year of the previous decision and also names of one of the other members of the kaitasi, Penitala Teo, who was then claiming the land. That name is confirmed in the letter of 24 September 1996 as is the link with the exchange of the land between Elisaia and Lomiga.

I am satisfied that the judgment is sufficiently demonstrated to refer to the land described as Mulipa Tai 89(f)

2. The documents show that the case came before Donne CJ as an originating motion. The reference by the appellant to it being an appeal is clearly an error and is no a reason to deny her the remedy she seeks.

3. The Order signed by Donne CJ is clearly the Order to which the written judgment refers. Whether it was properly sealed or not at the time is no longer a reason for refusing the appeal. The court needs to be satisfied that such an order was made and that is clearly the case as shown by the Chief Justice’s signature.

15. The appeal is allowed. I am satisfied that the house is built on the land of the appellant and that Mose Elisaia had no right to build there as was clearly stated by Donne CJ shortly after it was built. There is no record of the sale by Mose Elisaia to the first respondent. Had he been a bona fide purchaser for value there might have been other issues to consider. However, there is no evidence of that and he has chosen not appear or give any evidence to the Court.

16. I am satisfied that the first respondent is unlawfully in occupation of this land and his tenants, the second and third respondents, are equally in unlawful occupation. They have been served with notices to attend the court below and chose not to do so. I order therefore that a warrant shall issue addressed to the police that an officer of the police shall forthwith with dispossess and remove from the appellant’s land Mulipa Tai 89(f) any person in unlawful occupation of that land including, if they are in occupation, the first, second and third respondents.

Dated 26th day of October 2009

Hon. Gordon Ward
CHIEF JUSTICE