Tui v Iakopo [2011] TVHC 4; Civil Appeal 02 of 2010 (24 March 2011)

IN THE HIGH COURT OF TUVALU
AT FUNAFUTI
Civil Appellate Jurisdiction

HC. Civil App. 2/10

Between:

Peniata Tui
Appellant

V

Lopati Iakopo
Respondent

I Isala for appellant
L Italeli for respondent

Hearing: 22 March 2011
Judgment: 24th March 2011

Judgment

[1] In 2003, Peniata Tui, the appellant in this action, and two other members of his kaitasi, Natano Setema and Tagivasa Vaekau, brought a claim in the Lands Court to clarify ownership of the land, Matafele, number 84(u) the subject of the present action. At that time, Lopati Iakopo, the present respondent, was living in a house which it appears he had built on that land although he was not, in fact, present at the time the case was heard in the Lands Court.

[2] On 17 December 2003, the Lands Court held:

"Decision: Decided to leave the matter as it is approved and provided for by the letter from the kaitasi members - people who own the land have a right to what decision should be made in regards to the land. Court decided to remove the house by Saga and Iakopo as requested."

[3] In a letter dated 7 January 2004, the President of the Lands Court advised:

"We regret to inform you that we are informed that the house belonging to Sagaa and Iakopo should be removed from the said property. That is the decision of the court. We also informed that we give you 21 days from this date to remove your house from the said land."

[4] The Lands Court decision was not appealed but subsequent attempts by Peniata and his kaitasi to have the respondent removed from the land have failed. He is still occupying it and running a business from it.

[5] On 6 August 2009, Peniata filed an application with the Registrar of the Senior Magistrates Court to have the respondent removed from the land under section 56 of the Native Lands Act. It was listed as a land case and the learned Senior Magistrate conducted a lengthy hearing in which he considered the evidence of ownership of the land. The present proceedings have taken the form of an appeal from that decision.

[6] By section 25 of the Native lands Act, the right of appeal from the Lands Court lies only to the Lands Court Appeals Panel. There is no right of appeal directly from the Lands Court to the Senior Magistrate's Court; it must go first to the Appeals Panel. Any appeal from a decision of that body may be made to the Senior Magistrate's Court by section 26(1), with a further right of appeal from the Senior Magistrate's Court to the High Court under section 26(2). Those two subsections provide:

"(1) Any person aggrieved by a judgment, decision or order of a member or members of the Appeals Panel sitting as an appellate tribunal under this Act may appeal against the same on the ground that it was wrong in law to the Senior Magistrate's Court if, within three weeks of its being given or made, notice in such form and on payment of such fee as may be prescribed has been given to the Clerk of the Senior Magistrate's Court.

(2) 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 if, within three weeks of its being given or made, notice in such form and on payment of such fee as may be prescribed has been given to the Registrar of the High Court."

[7] Although the present case was dealt with in the Senior Magistrate's Court, there had been no right of appeal because there had been no decision of the Appeals Panel from which to appeal. As has been stated, the Lands Court decision in 2003 was never appealed.

[8] Section 56, which is clearly the section under which Peniata hoped to bring this matter before the Senior Magistrate's Court, is headed "Unlawful Occupation" and provides:

"(1) Complaints concerning unlawful occupation on native land may be lodged with the registrar of the court who shall issue a summons for the appearance before him of the party or parties so informed against and of any other person or persons whom it may be necessary or proper to examine as a witness or witnesses on the hearing of such information; and the court shall in the presence of the parties proceed to hear and determine such information and being satisfied of the truth thereof shall issue a warrant addressed any police officer requiring him forthwith to dispossess and remove from such land any person in unlawful occupation of such land and the officer to whom such warrant is addressed shall forthwith carry the same in the execution.

(2) The court may order such person to pay to the proprietor compensation for the period of the unlawful occupation and to pay to the government any costs incurred in dispossession and removal.

(3) Any person who occupies land without a claim of right made in good faith shall be liable to a fine of $50."

[9] Section 56 appears in 'Part VIII – Penalties' which also includes section 60:

"Proceedings where to be instituted:

Proceedings for any offence created under this Part or Part VII shall be taken either before a magistrate's court or before an island court:

Provided that in no case shall an island court to pass a sentence which is not authorised by the Island Courts Act."

[10] I asked counsel to address me on the issue of whether this action had been properly brought before the Senior Magistrate. The fact that Peniata filed his papers with the Registrar of the Senior Magistrate's Court suggests his aim was to bring the action under section 56 as that is the suggested method of initiating proceedings under subsection (1). However, section 2 of the Act defines "court" as a "lands court established by section 6" and so the complaints of unlawful occupation of native land under section 56 are to be lodged only with the registrar of the Lands Court.

[11] Counsel suggest that section 60 in fact provides an alternative course at the option of the complainant. I consider that misinterprets section 56. It is true that subsection (3) creates an offence under the Act and therefore proceedings which charge that offence may be taken either before a Magistrate's Court or before an island court. However, section 60 does not apply to proceedings under subsections (1) and (2) because they do not apply to any offence.

[12] Subsections (1) and (2) of that section provide a civil remedy. As the jurisdiction to determine ownership of native land is exclusively vested at first instance in the Lands Court, any complaint of unlawful occupation involving, as it will, the need to establish the question of ownership, must be brought in the Lands Court. Generally, it is likely be used to enforce a Lands Court decision which has already settled ownership.

[13] Subsection 3 creates an offence for which a fine may be ordered. It can only be pursued as a criminal proceeding with a different standard of proof and with a possible defence of bona fide claim of right.

[14] I am satisfied that this means that the process under section 56 by which an unlawful occupant may be removed from land he unlawfully occupies is a matter entirely for the Land Court.

[15] In the present case, I accept that Peniata was seeking a remedy under section 56(1) and/or (2). The history of the case shows that he has been frustrated in these attempts for some years and it appears that he has requested the police to assist but they have declined or failed to do so.

[16] The appeal from the Senior Magistrate's decision is dismissed on the sole ground that the proceedings were not properly brought in that court in the first place. Peniata must lodge his complaint against Lopati's occupation of this land with the registrar of the Lands Court who must then issue a summons for the party informed against and any other person whom it may be necessary or proper to appear to be examined. The case will then be determined by the Lands Court and, if they are satisfied that the complaint is well founded, they must issue a warrant addressed to any police officer requiring him forthwith to dispossess and remove from the land the person they find to be in unlawful occupation. In case there should be any further doubt, it is the police officer's duty on receipt of such a warrant forthwith to carry it into execution.

[17] In any such case, the Lands Court will need to establish who is the lawful occupant of the land.
In Peniata's case, the evidence will be the judgment of the court in 2003. It was not appealed and its terms clearly establish the validity of Peniata's claim.

[18] It would appear to be a matter for the court's discretion whether it should also use its powers under subsection 2 but I would suggest that such a consideration, involving as it may possibly lengthy further deliberation, should be determined after the primary consideration of dispossession in order to allow the warrant to be issued and executed forthwith.

[19] During the hearing in this case, the Court's attention was drawn to its earlier decision in Suka Taupule v Matanile Iosefa and others [2009] TVHC 1, in which the Court ordered a warrant be issued to dispossess and remove the respondents. In that case, the respondents had not appeared before the High Court nor, indeed, before the Senior Magistrate's Court. The Senior Magistrate had heard the case as an application under section 56 and had refused the motion on the ground that he had insufficient evidence to determine ownership.

[20] It is clear that the question of whether the case should have been brought before the Senior Magistrate under section 56 was not raised, perhaps because of the absence of respondents at either court to raise the objection. The hearing in the High Court became an exhausted examination of a much earlier decision of Donne CJ. Once that was clarified, it was clear that the respondents' occupation was in continuing breach of an order of the High Court and so an immediate order for possession of the land was made.

[21] As the question of whether or not the case had properly been brought before the Senior Magistrate's Court was not considered, I do not regard that case as authority for that issue.

[22] The appeal is dismissed. I note that both parties appeared before the Senior Magistrate and so, normally, the respondent should have his costs as the reason it was brought in the wrong court was the mistake of the applicant. However, in light of the nature of the decision in 2003, I do not consider it appropriate to make such an order in favour of the respondent and so I make no order for costs.

[23] For the avoidance of doubt, the injunction ordered in the High Court shall remain in force until the Lands Court has made a decision in this case or further order of this Court.

Dated 24th day of March 2011

Hon. Gordon Ward
CHIEF JUSTICE