IN THE HIGH COURT OF TUVALU
AT FUNAFUTI
Civil Appellate Jurisdiction

Civil App Case no. 2/08

Between:

Uale Taleni and other members of the Kaitasi
Appellant

And:

Suka Taupale
Respondent

BEFORE THE CHIEF JUSTICE

J Grover for appellant
S Earl as amicus curiae

Hearing: 26 May 2008 
Judgment: 29 May 2008

Judgment

The plaintiffs and the respondent are members of the same kaitasi.

On 3 April 2008, the plaintiffs attempted to file a civil claim in the Senior Magistrate’s Court for their share of money in the possession of the defendant. The plaintiffs’ claim is that the money is the 2007/2008 rent for kaitasi lands which has been paid to the defendant in his capacity as head of the kaitasi. The total sum received by him is $11,582.00 and it is claimed he has refused to share it out. The share claimed by the plaintiffs for three clans in the kaitasi amounts to a total of $8,461.50.

On the same day, the appellants applied ex parte for a Mareva injunction to preserve the money and prevent its dissipation.

The learned Senior Magistrate refused to accept the case on two grounds which he has set out in two short written judgments.

In the first, he refused the Mareva injunction on the basis that the sum to be secured by the injunction exceeded the jurisdiction of his court which is limited to cases in which the property, debt, demand or damage claimed is $10.000.00 or less.

In the other judgment, he gave his reasons for refusing to accept the case for filing on the ground that it fell under the jurisdiction of the Lands Court...

This is an appeal against both orders.

The statement of claim shows that the total sum being claimed is, in fact, below the upper limit placed on the Senior Magistrate’s jurisdiction. The Senior Magistrate referred to an affidavit in support by the plaintiff which appears to have claimed the same figure as the total held by the defendant. I have been shown no such affidavit and the figures on the claim belie that statement. If the Mareva injunction was directed at the full sum, it should not have been and the Senior Magistrate would have been right to refuse it on that ground or to limit it to the figure in the claim. 

However, the jurisdiction of the Court is based on the value of the matter claimed namely $8,461.50. That is clearly well within the court’s jurisdiction and this ground succeeds.

The second judgment is based on section 22 (2) of the Magistrates Courts Act:

"(2) No magistrate’s court shall have jurisdiction in any civil cause or matter in respect of which original jurisdiction to hear and determine the same is conferred on a lands court by the Native Lands [Act]."

Having set that out, the learned Senior Magistrate concludes;

"The above section prohibits this court from looking, hearing and determining the matter as the original jurisdiction is conferred on a lands court. Therefore, the court decides to refuse this writ because it has no power to look into it. It is a matter for the Lands Court."

The appellant raises two grounds in respect of this judgment, namely, that the learned magistrate erred:

1. in ruling on the question of jurisdiction before the parties had an opportunity to make submissions on the issue; and

2. in making a finding of fact, namely, that the Lands Court had not approved shares of land lease proceeds, when no evidence had been put to the Court."

Whenever a case is to be filed and the court considers it is the wrong forum, the court is entitled to refuse to accept it. However, where the question is not a clear case of incorrect filing but depends on the nature of the claim, it should not refuse it without giving the party filing and, where necessary, the other side an opportunity to make submissions. 

The Senior Magistrate explained:

"By looking at the claim, this money is the lease money of the applicants’ lands being leased to the Government of Tuvalu. The claim is specifically asking this court for their shares from the land lease money. This court does not have the powers to allocate the people’s shares from their lands. How can this court accept this share distribution when the lands court has not approved it. It is within the powers of the lands court to approve the allocation of shares on the lands or to distribute them if the people did not agree."

That is correct but the claim does not suggest there is any dispute about the amount or the manner in which the rent is distributed. If that was the issue, the case was clearly one for the lands court. All the claim states is that the head of the kaitasi is refusing to distribute the money and specifies the share for each of the three clans. That does not require a hearing in the lands court and the Senior Magistrate should have accepted the case or heard submissions. He was not entitled to assume that there was an area of dispute about the manner of allocation of shares or the entitlement to any particular claimant which are undoubtedly within the exclusive jurisdiction of the lands court. Nothing of that sort is claimed.

If the case as finally pleaded or as disclosed by evidence in the trial shows the dispute is as to the right of the parties to the money or the manner in which the shares are calculated, the court will have to consider dismissing the action for want of jurisdiction and the parties will need to take it to the lands court. Until and if that appears to be the case, the court should accept it as a normal civil claim for the plaintiffs’ entitlement.

The appeal is allowed and the Senior Magistrates Court is directed to accept the case for filing. If the plaintiffs still have cause to seek a Mareva injunction to preserve the sum claimed, the court shall hear the application.

Dated: 29th day of May 2008

Hon. Gordon Ward
CHIEF JUSTICE