IN THE HIGH COURT OF TUVALU
IN FUNAFUTI
Lands Appellate Jurisdiction

Land Appeal Case No: 10/04

Between:

Taulagi Sekau &
Puava Sekau
Appellant

And:

Tuituiga Vili
Respondent

BEFORE THE CHIEF JUSTICE

Malalau for appellants
Barlow for respondent

Hearing: 11 October 2005
Judgment: 14 October 2005

Judgment

The present respondent, Tuituiga, appealed from a decision of the Lands Court Appeals Panel to the Senior Magistrates Court. The learned Senior Magistrate gave judgment on a preliminary point in respect of Tuituiga’s right to appeal and, on that basis, dismissed the appeal. He did not, therefore, consider the merits of the appeal.

The action has had a long and, it must be said, unclear history. It appears to have started as a claim in the Lands Court in which the present first appellant, Taulagi, and a relative, Seava, were the plaintiffs. The defendants were the present respondent, Tuituiga, with two others, Semilepa and Iemaima.

The Court does not have the record of the Lands Court and it appears unlikely that any record exists. Apparently, no decision was announced and the plaintiff only heard anything about a result when a relative was involved in another case and was advised orally that the decision in this case had gone in favour of the defendants. No copy of the decision has been produced. Counsel for the present appellants tells the Court from the bar table that her clients also allege that one of the members of the Lands Court was a relative of the present respondent and head of his kaitasi. It is not apparent whether that was raised at either the Lands Court hearing or before the Lands Court Appeals Panel.

The appeal to the Lands Court Appeals Panel was heard on 21 July 2003. The appellants were the present appellants and the respondents were named as Niu, Iemaima and Semeli. There is no information when the notice of appeal was filed but it must clearly have been well out of time. Neither is it clear whether an application had been made for leave to appeal out of time.

Clearly only one of the appellants and one of the respondents had been a party in the Lands Court but, it was of little importance, because it appears that the respondents were never advised of the appeal and took no part in the proceedings. The Lands Court Appeals Panel allowed the appeal and the present respondent, who had, incorrectly, not even named as a respondent before the Appeals Panel, appealed to the Senior Magistrate’s Court naming the present appellants as respondents.

The learned Senior Magistrate dismissed the appeal on the basis that the present respondent, Tuituiga, who had brought the appeal, had not been a party to the appeal to the Appeals Panel and had no standing to bring an appeal. The Senior Magistrate referred to the suggestion by the respondents, Taulagi and Puava, that Tuituiga was not a party to the action in the Lands Court or the Appeals Panel. He continued:

"The Court supports the submission that the appellant has never been a party in this matter before the Panel and Lands Court. Therefore the Court will dismiss the appeal.

The Court informs the parties that there are two other matters that it needs to address in this appeal:

1.	The right of appeal in this matter commences from the decision of 
 the Land Courts Appeal Panel dated 14 May 2004.
2.	The decision in this matter is binding only on the parties named in the appeal. That means it is not binding on any other members of the family who wants to bring up a new case on the same land. 
 The decision is a matter for the trial court to make.

The counsel for the respondent reminds the court on the issue of res judicata. The court responds than the issue of res judicata only applies if the same case has been heard before the court. It means the same parties bring up the same case afresh to the court. As the result the case must not proceed.

In this case, the appellant is a different person with the same subject matter. The court is of the view that the appellant or any other members of the family can still take up the matter afresh in the Lands Court and it is the matter for the trial court to make a decision. The issue of res judicata can always be raised at the trial but the case still needs to proceed before the trial court. So, the decision on this case is only binding on the parties at the time."

This appeal was brought by the successful party in the appeal before the Senior Magistrate relying on the provisions of section 26 of the Native Lands Act, Cap 22, section 26 (2) which provides:

"Any person aggrieved by a judgment, decision or order of the Senior Magistrate’s Court under this section may with the leave of that court or of the High Court appeal against the same to the High Court …"

The appellants seek to set aside that part of the judgment of the Senior Magistrate in which he held that his decision binds only the parties to the action. The result is that they do not ask this Court to quash the decision but to quash part of the reasons for the decision. I confess I find it hard to see how this Court can allow the decision to stand if a major reason for that decision is incorrect.

The respondent filed a notice of intention to oppose the appeal and, later, filed a cross appeal on the ground, first, that the Appeals Panel decision was null and void as it was lodged out of time – a ground that should have been raised before the Panel but clearly could not because the respondent knew nothing of the Appeals Panel hearing – and, second, that the Senior Magistrate erred in finding that Tuituiga had never been a party in the case and therefore had no right to appeal. 

Despite the first ground of the cross appeal, the respondent’s cross appeal was, itself, out of time and objection is taken by the appellant. Neither party to the appeal sought leave to appeal as they should have done and neither, unremarkably in the circumstances, objects to the other’s failure to do so. 

I indicated at the hearing that I intended to send the case back to the Lands Court to start afresh and counsel both agree that is the most just result. However, they ask the court still to consider their grounds. I do so briefly.

The appellants’ complaint is that the magistrate was wrong to suggest the decision only binds the parties because it leaves it open to any other member of the family to bring another appeal. She suggests that this is a case of Henderson v Henderson abuse of process (Henderson v Henderson [1843] 3 Hare 100) and should not be allowed in the interests of finality of litigation.

With respect to her arguments, counsel misses the effect of this type of estoppel. It refers to the bringing of a fresh action but that is not the situation here. The Senior Magistrate was faced with a case where he thought the action was being taken on appeal by a person who had not been party to the action in the lower courts – that he was, as it were, appearing for the first time halfway up the appeals ladder

Henderson v Henderson abuse of process and both issue and cause of action estoppel are similar in that they restrict or prevent reiteration of matters previously litigated before, and determined by, a competent court. They do not apply to the situation that was, incorrectly, found by the Senior Magistrate to exist here, namely that a new party was appearing on appeal from a matter in which he had not previously been a party.

There is no doubt that the courts must look to finality in litigation and there can be few better examples of the dangers of lack of finality than the land courts in Tuvalu. Where an action is started which is suggested to fall within the definitions of issue or cause of action estoppel or Henderson v Henderson abuse of process any challenge on that ground must be made to and determined by the court in which that new action is brought.

The Senior Magistrate was correct in this but unfortunately he made his decision on a factual mistake. With the case in the confused mess it was, he can be excused for that but the result is that he overlooked the fact that the present respondent had been a party in the case in the Lands Court and was, therefore, entitled to be present at the appeal by his opponent.

The papers before me do not reveal the grounds of the present respondent’s appeal to the Senior Magistrates Court. Section 26(1) allows an appeal only on the ground that it was wrong in law (a restriction that is not applied to a subsequent appeal to the High Court under 26(2).) However, the respondent was not named as a respondent, was not notified of the appeal and so effectively was excluded from the appeal from the Lands Court case in which he had been a party. He clearly had a right of appeal to the Senior Magistrates Court on the ground of procedural irregularity in the Lands Court Appeal Panel hearing. Denial of that right, effectively prevented him from any opportunity to challenge his exclusion from an appeal to which he was clearly the rightful respondent. Equally, he was denied the opportunity to oppose the appeal on the ground that it was badly out of time. Ironically, that very lateness precluded him also from any possible alternative remedy such as judicial review.

He was not, therefore, a new party but one who had every right to complain about his exclusion from the hearing before the Appeals Panel. Counsel for the respondent points out that, even if that had not been the case, the use of the expression "person aggrieved" in section 26 is wide enough even to cover many appellants who were not in the original action.

I accept that, having been wrongly excluded from the appeal to the Panel, Tuituiga is undoubtedly a person aggrieved. Counsel asks the court to give some guidance on the breadth of that expression. I have heard insufficient argument to give such a ruling but would venture to suggest it is not as wide as counsel has suggested it might be. Clearly it allows people to appeal who may not have been parties in the action that produced the result about which they feel aggrieved but I consider it must be limited to those people who have some legal interest in the land over which the litigation is being conducted and not aggrieved or malicious busybodies.

Counsel has also raised the question of the time limits under the Native Lands Act. He suggests they are far too short in the modern world where so many of the people interested in the case may be abroad and, especially, may be at sea. I understand that concern and would ask that consideration be given to amending the Native Lands Act to provide more realistic time limits. However, at present, they are the limits and they should be observed whenever it is possible.

I give leave to the respondent to file his cross appeal out of time and I dismiss the appellant’s objection. Justice will be best served in this case by returning the case for fresh trial and that will be hindered if earlier decisions are preserved on technical objections.

The appeal against the Senior Magistrate’s decision is dismissed and the cross appeal is allowed on the ground that the Senior Magistrate erred in deciding the appeal on the basis that the respondent had not been a party but the ground that the appeal to the Panel had been out of time is dismissed as the Court has been provided with no evidence to enable it to determine the manner in which the appeal had been brought or, if it is the case, leave was given.

By section 26(4), the High Court may make any order that might or ought to have been made and to "make such further or other order as justice may require and give all necessary and consequential directions".

The justice of this case will not be served by remitting it to the Senior Magistrate to decide on the merits as his decision will inevitably be to send it back to one of the courts below. In order to save time and unnecessary expense, I order that the case be remitted to the Lands Court to be heard afresh. In view of the age of the case, I direct that the Land Court shall hear it within one month of the application being filed. 

Dated: 14th day of October 2005

CHIEF JUSTICE