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Fung v Tapu [1999] TVHC 1; Case No 04 of 1999 (1 January 1999)

IN THE HIGH COURT OF TUVALU
Land Appeal No 4/99

JULIANN FUNG
(Appellant)

v

FALEFAEA TAPU
(Respondent)

DECISION OF CHIEF JUSTICE

The Appeal is allowed in part.

The Appeal Panel has correctly found that the Land Court had no jurisdiction to hear the application and make the order the above respondent sought.

The jurisdiction given to the Land Court concerns only those applications made under the authority of section 18(3) of the Native Lands Act (Cap 22), which restricts applications to “native leases” as defined in section 2 thereof. The Lease the subject of the application was not such a lease. The argument of Mr. Halm as put to the Panel was rightly accepted by it.

However, it is clear the Panel could not proceed to rehear the appeal before it under the authority of section 25 (3) of the Act.

Firstly, the right to rehear is available only if there is a lawful process appealed against. Here there was no such process. What was put to the Panel was an order made without jurisdiction. There was this nothing to hear.

Secondly, the Native Lands Act gives no greater jurisdiction to hear leases than has been given to the Land Court. As has been held, the Lease here is not a “native lease”. The Panel has no jurisdiction to inquire into it by way of a rehearing. Such is not a matter that can lawfully be entertained by it.

The order on the rehearing is therefore not lawfully made and it is hereby quashed.

The effect of this decision is that there is no order for possession validly made in respect of the said leased land.

Gaven Donne
Chief Justice