Mose v Development Bank of Tuvalu [2003] TVHC 33; HC CC No 4 of 2003 (24 September 2003)

HIGH COURT OF TUVALU
CIVIL JURISDICTION

CASE NO. 4/03

BETWEEN:

LEPAIO MOSE
Appellant

AND:

DEVELOPMENT BANK OF TUVALU
Respondent

Hearing: 24^th September 2003

James Duckworth for the Appellant
Kiatoa Ulika for the Respondent

On 29^th October 2002, the Resident Magistrate granted ex parte an order sought by the respondent to forfeit an agreement between the Appellant and Respondent to use business premises for non-payment of rent. Further, it ordered the Police to execute a warrant to evict the Appellant and seize relevant books and papers.

The Appellant had never been served with any proceedings nor had he been served with notice of the hearing. In fact, no possession proceedings had ever been served, the Magistrate relying on a Statutory Declaration sworn by a Senior Officer from the Bank. The Appellant admitted theft he had received letters indicating that action would be taken.

Further, the Appellant contended that this was not within the jurisdiction of the Magistrate and could only properly be heard by either the Senior Magistrate or High Court. It involved the use of rather than the ownership of land.

The Respondent's solicitor although believing that the Respondent had good grounds to take action agreed that the Court proceedings were irregular and had to be set aside.

JUDGMENT: CJ WARD

It is quite clear that the procedure followed by the Court is inappropriate and improper. It seems that no proceedings were ever issued and that should have been provided for.

The Appeal is therefore allowed. Order:

(1) Appeal allowed by consent;

(2) Order of Magistrate set aside;

(3) Any property seized by the Police to be returned herewith;

(4) No order for costs.

THE COURT