IN THE HIGH COURT OF TUVALU
AT FUNAFUTI
Land Appellate Jurisdiction

Case No: 2/06

Between:

Sir Toaripi Lauti
Appellant

And:

Talafou Penaia
Respondent

BEFORE THE CHIEF JUSTICE

S Barlow for appellant
S Talu for respondent

Hearing: 9 October 2006 
Judgment: 13 October 2006

Judgment

This is an appeal from the decision of the learned Senior Magistrate on 12 April 2006 in respect of an application to extend the time for appealing a decision of the Lands Courts Appeals Panel in case number 2/05.

The decision of the Panel had been given on 11 May 2005. It is accepted that the present respondent, who was the applicant before the Senior Magistrate, received a copy on that date. Under the terms of section 26(1) of the Native Lands Act, he had three weeks to appeal, making 1 June 2005 the last day. The application to extend the time was not filed until 8 June 2005. The Senior Magistrate found it was out of time and counsel for the present respondent accepts that was the case.

On the authority of the decision of this court in Levi Teagai v Eliu Nelu; Lands Appeal Case No 2 of 2004, 8 October 2004, the Senior Magistrate ruled that his power was limited to extending the time and therefore could only be exercised if the application was made before the time had expired. That is critical in this case and I shall return to it. However, the form of the Senior Magistrate’s judgment is such that it is necessary to look further at the history of this whole action.

In his judgment, the learned Senior Magistrate deals with the history. He first records that the action was heard by the Lands Court Appeals Panel in case number 5/97. It appears that the date of the hearing is not available but an appeal was clearly lodged to the Senior Magistrate’s Court under section 26 of the Native Lands Act.

At that time there was no Senior Magistrate and so it was heard in the High Court sitting in the Senior Magistrate’s Court jurisdiction. On 26 September 2003, the High Court allowed the appeal by consent and remitted it to the Panel for re-hearing.

Following a fresh hearing on 30 March 2004; case number 2/04, the findings of the Panel commenced with the statement that the "appeal is redirected from High Court for rehearing by Panel".

Having set out its reasons, the Panel concluded:

"In considering the statements from both parties, the Panel is inclined to uphold its former decision pertaining to this appeal in 1997 as there are no grounds to alter it. … Decision: Toaripi’s appeal failed."

The present appellant again appealed to the Senior Magistrate’s Court but, on 15 October 2004, the appeal was dismissed because it was out of time. 

That, it would appear, should have been an end of the matter but somehow, and it is not apparent how, the case was again listed before the Panel. It was heard on 7 April 2005; case number 2/05, and, at the start of the minutes, the President is recorded as stating:

"Thank you all for coming. The purpose of your summoning before court is because this case has been remitted to the Panel. We have heard statements from you and all that is needed now is a final decision on this appeal." 

The Panel’s decision was:

"The court revokes all its previous decision in 1996, 1997, 2004 and invokes a fresh decision. The court allows this appeal by Toaripi …"

and it proceeds to made consequential orders.

That decision was appealed to the Senior Magistrate’s Court by the present respondent and, in a decision on 12 April 2006, the court concluded;

"Therefore the court decides this appeal and makes the following orders:

1.	The appeal is dismissed.
2.	The judgment of the Lands Court Appeals Panel on the 7 April 2005 on the Lands Appeal Case no 2/05 is quashed because it has no jurisdiction to re hear the same appeal for the second [time].
3.	The Lands Court Appeals Panel decision on the 14 May 2004 on the Lands Appeal Case no 2/04 to stand."

There follow a number of further orders arising from those made in paragraphs 2 and 3 (above).

The fact that the first order relates to the Senior Magistrates decision that the appeal was out of time and that he could not therefore extend the time can be seen from his judgment. Having considered the question of time in which to appeal, he continues:

"The court agrees with the submission by the counsel for the respondent that if the court finds that the appeal was filed out of time, the court to dismiss the appeal because it has no jurisdiction to hear it. But, before the court pronounces its decision on the appeal it needs to make two other rulings:

1. The Court will not proceed with the other issue that the appellant raises.
2. The Court will make one observation arising from this appeal before making the final decision.

Before the court left this appeal, it needs to make one observation that arises out of this appeal. The observation is whether the Appeals Panel has any jurisdiction to hear this matter for the second time."

Counsel for the appellant bases his case firmly on the first order dismissing the appeal. Once that was done, he suggests, the court was functus. Any subsequent orders are inconsistent and should not have been made.

In addition to the claim in the Senior Magistrates Court that the appeal had been lodged in time, counsel for the respondent submitted that the Panel had no power to hear the appeal in 2005 as the matter was res judicata following the decision in 2004. The appellant disputes that contention and suggests that an analysis of the decisions shows that each case involved separate and discreet issues and, in any event, a challenge of res judicata should have been raised before the Panel.

Whatever the basis for the respondent’s challenge to the 2005 decision, his remedy lay in an appeal to the Senior Magistrate’s Court under section 26 of the Native Lands Act which gives him three weeks in which to appeal. Any challenge to the propriety of the hearing in 2005 needed to be by way of such an appeal but he failed to do so in time. The Senior Magistrate could not extend the time once it had expired and he had no alternative to dismissing the appeal as being out of time. 

It is understandable that he was concerned about the history of the appeal. The basis upon which the case was returned to the Panel in 2005 is not apparent on the information before this Court and appears to be questionable. But, by continuing with a consideration of that issue, the magistrate was effectively hearing and ruling on the appeal he had just dismissed.

Land cases in Tuvalu are notoriously difficult to determine with any finality. Yet the purpose of the law is to try, having reached a final decision, to put a stop on repeated and continuing litigation. It is for that reason that the terms of section 26 impose strict limits on the right of appeal. The present respondent failed to bring his challenge in time and he cannot now do so.

However, counsel for the respondent makes a further submission. First, he suggests the Court has an inherent jurisdiction to allow an appeal out of time if it considers it is necessary in the interests of justice and there is reason to apprehend that there has been a miscarriage of justice. Second, he suggests that the decision and orders of the Senior Magistrate which followed the dismissal of the appeal were made in exercise of a similar (presumably also inherent) jurisdiction based on his finding that there had been a miscarriage of justice.

Counsel cites the case of Aihi v The State (No 2) [1982] PNGLR 44 in which such a test was used. I do not consider that case is applicable. The decision that the Papua New Guinea Supreme Court could grant an extension of time in which to appeal despite a restriction imposed by the PNG Supreme Court Act was based on the provisions of section 55(2)(b) of the PNG Constitution. Although that section is not set out in the copy of the report before this Court, it is clear it gives the Supreme Court a right of review of all judicial acts of the National Court. That was interpreted, with some reservation, by the majority of the court in Aihi’s case as giving the Supreme Court a discretionary power to review acts of the National Courts even where it meant, as was the case there, that the Court was overruling statutory mandatory time limits imposed by section 27 of the Supreme Court Act.

The equivalent in our law in respect of an appeal from the Panel is section 26 of the Native Lands Act. It gives a right of appeal to the Senior Magistrate’s Court if it is made within 3 weeks of the judgment being given or made. There is no power in our law comparable to section 55(2)(b) of the PNG Constitution either in respect of the High Court or the Senior Magistrate’s Court.

The appeal is allowed. The order of the Senior Magistrate dismissing the appeal as being out of time is confirmed. The remaining orders made on 12 April 2006 are quashed.

Dated: 13th day of October 2006

Chief Justice