Alefaio v Tine [2007] TVHC 3; Land Appeal Case 1 of 2007 (26 October 2007)

IN THE HIGH COURT OF TUVALU
AT FUNAFUTI
Land Appellate Jurisdiction

Land Appeal case no.1/07

Between:

Niu Alefaio
Appellant

And:

Kaimoko Tine
Respondent

BEFORE THE HIGH COURT

S Talu for appellant
J Grover for respondent

Hearing: 20 October 2007
Judgment: 26 October 2007

Judgment

This is an appeal from a decision of the learned Senior Magistrate on an appeal from the Lands Courts Appeals Panel.

The case in the Lands Court had related to the validity of a lease over land at Tealapae. The lease had been granted by the present appellant, Niu Alefaio. It appears that the Lands Court upheld his right to lease the land and the present respondent, Kaimoko Tine, appealed. The Panel dismissed the appeal.

The report of the Panel’s decision was based largely on the terms of the will of Sialofi Alefaio. It appears there was no challenge that, if the will is valid, Niu Alefaio had no right to enter into the lease agreement and so the deliberations of the Panel revolved around the question of the validity of that will.

Kaimoko Tine had appealed to the Senior Magistrate’s Court under section 26 of the Native Lands Act which gives a right of appeal on any ground claiming that the decision was wrong in law.

The grounds were:

1. that the Panel was wrong in law by failing to recognise a valid will;
2. that the Panel erred in law by allowing into evidence an inadmissible letter from New Zealand;
3. that the Panel erred by failing to follow the instructions of a valid will; and
4. that the Panel was wrong in allowing the lease.
   

The learned Senior Magistrate allowed the appeal. It is not clear what was the precise basis for some of his findings but he clearly found that this was a valid will and that the lease was, therefore, invalid. The present appeal is limited to the single ground that, in concluding the will was valid, he erred in law.

Mr Talu, for the appellant, first asked this Court to find the will was invalid because there had been no grant of probate. As he pointed out, section 15 of the Native Lands Act gives the Lands Court jurisdiction over probate of native wills. He tells the Court from the bar table that no application was made for probate in this case and so the will was not valid. He seeks guidance from this Court on the extent and effect of section 15.

I do not consider this is a question that can be determined in this appeal. There is no evidence of the matter, there has been no judgment on it by the lower courts and it was not raised before the Panel or the Senior Magistrate. The sole issue is whether the Senior Magistrate was wrong in law to find the will was valid.

The procedure governing the form of native wills is found in regulation 8 of the Tuvalu Lands Code:

"8. (i) An owner’s will disposing of his property may be allowed by the lands court if it is in accordance with this Lands Code.

(ii) If any owner wishes to direct the distribution of his estate after his death then he should make a will. This may be written on any kind of paper, but it is better if he will use the will forms kept by the registrar of the lands court. When he has written the terms of his will then he must sign it in the presence of 2 witnesses who must also sign it. The will must be witnessed by 2 persons who are not members of the testator’s family and who are not beneficiaries under the will. A new will may be substituted or a new condition may be written changing the terms of the first will, but such new wills or terms must both also be signed and witnessed. A written will, correctly witnesses may not be changed by a verbal one but if there be no written will then a properly witnessed verbal bequest may be considered by the lands court."

The only remaining challenge relates to the witnessing of the testator’s signature on the will. The signature on Sialofi’s will is witnessed by three people. The Vice-President of the Lands Court and a member of that Court have signed followed by a signature, Tine Alefaio, over the word ‘Witness’.

Mr Talu suggests that, as the Code sets out rules, any failure to follow them, in the present case by the inclusion of a third witness, will render the will inadmissible.

I cannot agree. The requirement is that there are two witnesses who satisfy the requirements for witnesses set out in regulation 8 (ii). The first two did but clearly Tine Alefaio did not. However, his signature was not needed as two acceptable witnesses had already signed. Once that was done, the will accorded with the requirements of the regulation. Any further signature had no effect on the will and cannot, in the absence of further evidence of, for example, influence on the testator, be found to invalidate the already properly witnessed signature.

The appeal is dismissed.

Dated: 26th day of October 2007

Chief Justice