Iosefo v Tuvalu Red Cross [2012] TVHC 9; Civil Case 1.08 (26 November 2012)

In The High Court of Tuvalu HC.
At Funafuti
Civil Jurisdiction

Civil case no. 1/08

Between:

Matanile Iosefa
Plaintiff
v

Tuvalu Red Cross
Respondent

In The High Court of Tuvalu
At Funafuti

Civil Jurisdiction

HC. Civil case no. 2/08

Between:

Matanile Iosefa
Plaintiff

v

Ioapo Tapu
Respondent

BEFORE THE CHIEF JUSTICE

I Isala for Plaintiff
F Niko and L Italeli for defendants

Hearing: 16 November 2012
Ruling on preliminary issue: 26 November 2012

Ruling

[1] The plaintiff in both these actions claims money due for work done. The defence in each case relies on the provisions of section 2(1)(a) of the English Limitation Act, 1939, which provides that actions founded on simple contract shall not be brought after the expiration of 6 years from the date on which the cause of action accrued. The plaintiff's work in these cases was invoiced in 1998 and 1999 respectively. The writs were not filed until 2008.

[2] In January 2012, the cases were both listed for determination of the issue of limitation. I considered that counsel needed time for research on the issue. I have now had the benefit of their submissions for which I am grateful.

[3] Both counsel have relied on an advisory Opinion of Donne CJ given in answer to questions posed by the, then, Attorney General relating to the application of the Laws of Tuvalu Act 1987; In the matter of the Constitution of Tuvalu and in the matter of the Laws of Tuvalu Act 1987, No 4/1989. The question related to the applied laws under section 7 (1) of that Act and included a question whether the applied laws consist of those statutes of general application in conformity with which the Courts in Tuvalu have exercised their civil and criminal jurisdiction ...

[4] The Opinion is unreported and it is instructive to set out the learned Chief Justice's account of the historical development of this aspect of the law with which I respectfully agree. I do not, however, consider that the Court is bound by an advisory opinion and, as I shall explain, whilst I accept his conclusion that imperial enactments received under section 15 of the Western Pacific (Courts) Order, 1961, become part of the applied laws of Tuvalu if they are adopted as the law by Parliament or are incorporated into the local Acts of Tuvalu, with great respect to the Chief Justice's scholarship, I must disagree that the High Court can only make such enactments part of the Laws of Tuvalu by declaring them as law. My opinion is that they are already part of the applied law and the power given to the High Court by the proviso to section 15 is to modify them if necessary to suit local conditions.

The historical background

[5] After a brief introduction, Sir Gaven set out the historical background [I have numbered his paragraphs for ease of reference]:

[5a] "The starting point in this exercise is section 15 (1) of the Western Pacific (Courts) Order 1961 which reads:

15(1) Subject to the provisions of this Order and any rules made thereunder and to any law for the time being in force in any territory, the civil and criminal jurisdiction of the High Court shall, so far as circumstances admit, be exercised upon the principles of and in conformity with –

the statutes of general application in force in England on the first day of January, 1961 and the substance of the English common law and doctrines of equity, and with the powers vested in and according to the course of procedure and practice observed by and before Courts of Justice in England, according to their respective jurisdictions and authorities:

Provided that the said common law, doctrines of equity and statutes of general application shall be in force so far only as the circumstances of any particular territory and its inhabitants and the limits of Her Majesty's jurisdiction permit and subject to such qualifications as local circumstances render necessary.

[5b] Under section 4 of the Tuvalu Order 1975, the Order of 1961 was revoked, but section 10 (1) thereof provided that until such time as other provision was made, the High Court of Tuvalu was to have the like jurisdiction as the High Court of Western Pacific as if the Pacific Order in Council 1893 and the Order of 1961 had not been revoked. That jurisdiction was to be exercised as if subsections (1) and (3) of section 15 of the Order were still in force.

[5c] The Tuvalu Order 1975 was itself revoked by the Tuvalu Independence Order 1978 which created the first Constitution of Tuvalu. However, section 5(1) of the latter Order provided that such revocation was without prejudice to the continued operation of any existing laws made or having effect as if they had been made under the Tuvalu Order 1975

[5d] The effect of this was that section 15 (1) and (3) of the Order of 1961 was an existing law within the meaning of the term in section 1 of Schedule 5 of the present Constitution of 1986 which replaced the Constitution created by the Tuvalu Independence Order 1978. Consequently, by virtue of section 2 (1) of the said Schedule, on the coming into operation of the new Constitution, it had effect as if it were made thereunder.

[5e] In my opinion, the provisions of section 15 (1) and (3) of the 1961 Order still apply and the High Court is bound to comply with them. (Subsection 3 is irrelevant in the consideration of what follows):

[5f] The position, therefore, is that on Independence, Tuvalu inherited section 15 (1) of the Order of 1961. It is not an enactment that expressly adopts as law, or gives effect to, the imperial enactments named therein. ... Section 15 (1) requires the High Court 'so far as circumstances admit' [to] exercise its jurisdiction 'upon the principles of and in conformity with' imperial enactments of general application. In addition, the proviso to the section in effect directs the court that it must apply the law to Tuvalu only to the extent that:

− the circumstances of Tuvalu and its inhabitants permit it,
− the limits of the jurisdiction of government permit it,
− it is in accord with any qualifications rendered necessary by local circumstances."

Donne CJ's conclusion

[5g] "Only after and not until an Imperial enactment is adopted by the Court to meet these requirements is it 'in force' as the law of Tuvalu, that is the effect of the proviso.

[5h] That proviso in my view, is a clear indication the application to the law of Tuvalu of any Imperial statute covered by section 15 (1) is dependent on the requirements of the proviso being satisfied.

[5i] Section 15 of the Order of 1961 was enacted under the authority of the Parliament of the United Kingdom for the purpose of ensuring that its laws were adapted to suit the needs of its territories in the Pacific. It used the High Court to adapt them. It is significant that by subsection 2 of the section, six imperial enactments were applied as the law. That would mean they became "existing law" under the Constitution.

[5j] The object of section 15 (1) was to consider and to receive the statutes of general application (the Imperial enactments in force in England on 1 January 1961) but that such statutes were not to be applied as law until they were adapted in accordance with the requirements set forth in the proviso; that was when they were adapted by the High Court and declared as having effect as part of the law of Tuvalu.

[5k] In my opinion until the enactment was so adapted there could be no certainty as to whether, or in what respect, it was part of the law. In applying it, the court would not necessarily prefer the law of England. Only after considering the circumstances set out in the proviso and making such adaptations in accordance therewith could the Court declare the law. Until that was done, it could not be ascertained what the law was. That was the law prior to independence; that, in my view, is the law now.

[5l] Of course the law can be declared by Parliament. The Order of 1961 when promulgated was a convenient method of delegation by the United Kingdom Parliament for the 'tailoring' of its laws to suit the needs of its vast territories rather than having itself to legislate for that purpose. Now each territory is a sovereign state with its own legislature dealing with its own needs and I consider the 1961 order is quite inappropriate in such circumstances. Nevertheless Tuvalu has adopted it.

[5m] In the result, I consider that unless an imperial law has been either expressly adopted by the Parliament of Tuvalu or the Court has applied it as such by declaring it, it does not have effect as part of the law of Tuvalu. It is not an applied law. Put in another way, Tuvalu, by the Order of 1961, receives and inherits the Imperial enactments in force on the 1st January 1961. Whether it has adopted any of them depends on whether Parliament has declared the law or whether the court at any time since the Order has so declared them."

Decision

[6] I differ in my interpretation of the laws from that of Donne CJ over the status, after the 1961 Order, of the imperial enactments in effect on 1 January 1961. The intention of section 15 was to ensure that, until the courts or legislatures of the territories now comprising Tuvalu but previously covered by the Western Pacific Court had formulated their own laws, those statutes of general application would still apply as the law. It also gave the High Court a saving power to apply them only so far as the circumstances of Tuvalu and its inhabitants and local circumstances rendered necessary. If the Court did not find it necessary, the statute would continue to be applied unchanged.

[7] In 1961, the present territory of Tuvalu was within the jurisdiction of the High Court of the Western Pacific. The statutes of general application in force in England on the first day of January 1961 were part of the law then administered throughout the jurisdiction of the Western Pacific Court.

[8] Section 10(1) of the 1975 Tuvalu Order provided that "until such time as other provision is made... the High Court [of Tuvalu] shall ... have the like jurisdiction as the High Court of the Western Pacific ... would have had in and in relation to Tuvalu as if the Order of 1893 and the Order of 1961 had not been revoked ...".

[9] Section 5(1) of the Order of 1978 reiterated that position:

"The revocation of the existing Orders shall be without prejudice to the continued operation of any existing laws made, or having effect as if they had been made, under any of those Orders, and the existing laws shall have effect on and after Independence Day as if they had been made in pursuance of the [1978] Constitution ..."

[10] (I pause to note that "existing laws" is defined in the transitional provisions of the present, 1986, Constitution as meaning:

"...any Acts of the Parliament of the United Kingdom, Orders of Her Majesty in Council, Ordinances, rules, regulations, orders or other instruments having effect as part of the law of Tuvalu (whether or not they have been brought into operation) immediately before the appointed day but does not include the Tuvalu Independence Order 1978 or the independence Constitution." Schedule 5 section 1)

[11] Section 5(1) continues by reiterating the requirements of the proviso to section 15:

"... and shall be construed with such modifications, adaptations, qualifications and exceptions as may be necessary to bring them into conformity with the Tuvalu Act (1978) and this Order."

[12] The position in section 10(1) was preserved by section 2 in Schedule 5 to the present [1986] Constitution:

"(1) Subject to this section, on and after the appointed day all existing laws shall have effect as if they had been made in pursuance of this Constitution."

(2) All existing laws shall be construed with such changes as to names, titles, offices, persons and institutions, and to such other formal and non-substantial changes as are necessary to adapt them to the provisions of this Constitution."

[13] Similarly, section 4 (2) of the Laws of Tuvalu Act:

"In addition to the Constitution, the laws of Tuvalu comprise

(a) every Act

(b) customary law

(c) the common law of Tuvalu

(d) every applied law."

[14] And section 7 of the same Act provides:

"(1) The applied laws comprise those imperial enactments which have effect as part of the law of Tuvalu.

(2) For the purpose of its application as part of the law of Tuvalu, an applied law shall be construed with such _

(a) changes to names, titles, offices, persons and institutions, and

(b) other formal and non-substantial changes,

as are necessary to adapt it to the provisions of the Constititution."

[15] I accept Sir Gaven's interpretation where he set out the requirements of the proviso to section 15 in these terms [paragraph 5f above]:

"... the proviso to the section in effect directs the Court that it must apply the law to Tuvalu only to the extent that;

(a) the circumstance of Tuvalu and its inhabitants permit it,

(b) the limits of the jurisdiction of government permit it,

(c) it is in accord with any qualifications rendered necessary by local circumstances."

but I cannot accept his conclusion [paragraphs 5g and h above] that:

"Only after and not until an imperial enactment is adopted by the Court to meet these requirements is it "in force" as the law of Tuvalu, that is the effect of the proviso. That proviso in my view, is a clear indication the application to the law of Tuvalu of any imperial statute covered by section 15(1) is dependent on the requirements of the proviso being satisfied."

[16] That was not the intention nor, I suggest, is it the effect of section 15. Those statutes of general application were part of the law of the Western Pacific until independence and then continued as the law of Tuvalu. What the proviso did was to give the High Court of Tuvalu the power to modify those laws as necessary to meet the circumstances of Tuvalu and its people.

[17] Sir Gaven considered that the laws had no effect until they were so modified and had been declared to be the law. With respect, section 15 states no such thing. It means that any statutes of general application which were the existing law should only be applied subject to such qualifications as the High Court considers local circumstances render necessary.

[18] To read it otherwise would mean that, after independence, Tuvalu would have no law covering those fields until and if the High Court ruled on the law. I am uncertain how it could have been envisaged, in such a case, that the law would come to the attention of the High Court. In the interim, no person would know whether or not that law existed and, therefore, whether he had to observe it. When Sir Gaven states that "until the enactment was so adapted there could be no certainty whether or in what form it was part of the law" he was, I believe, pointing to the flaw in his interpretation.

[19] I cannot accept that the intention of section 15 and the subsequent Orders was to leave a series of lacunae in the law which could only be filled by an action in the High Court. I am satisfied that the effect was to retain those statutes as part of the law until Parliament passed its own legislation either adopting or incorporating those aspects of the law. If, in the meantime any parts of those laws came before the High Court, the Court could declare any qualifications it considered necessary in accordance with the requirements of the proviso. That could only occur if an action was brought before the Court and I am uncertain who would bring an action to confirm the law if it was not part of the existing law in any event.

[20] The present cases provide an example. Under the learned Chief Justice's interpretation, the defendants could not rely on the limitation period as a defence because there was no such law in Tuvalu it having not been declared as such by the High Court. Once sued in the High Court, it would be impossible for the defendant to plead limitation until the Court had declared the English Limitation Act was part of the Tuvalu law and which modifications, if any, it wished to apply in accordance with the proviso to section 15. If the Court did so declare, when would the period start? If it had not run in the absence of such a declaration, would it begin on the date of the declaration which would mean the defence must fail or would the Court order that it covered the earlier period when there had been no such law - effectively applying the previous law retrospectively?

[21] I am satisfied that the English Limitation Act is a statute of general application which was in effect on 1 January 1961 as part of the law of the Western Pacific. It has continued as part of the law of Tuvalu and does so in that form until and unless it is found by the High Court to need qualification to suit the circumstances of this country or Parliament enacts its own law in respect of limitation of actions.

[22] I see no reason why the circumstances of Tuvalu do not permit a law of limitation nor do I consider there is any qualification to section 2(1)(a) which local circumstances render necessary.

[23] The dates in the statements of claim are not disputed and exceed the period in section 2(1)(a) of the Limitation Act. The plaintiff's claims are statute barred and his action must fail. In the circumstances of this case, I make no order for costs.

Dated: 26th day of November 2012

_________________
Hon. Sir Gordon Ward
CHIEF JUSTICE