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Leupena v Ioata [2008] TVHC 6; Land Appeal Case 1 of 2008 (29 May 2008)

IN THE HIGH COURT OF TUVALU
AT FUNAFUTI
Land Appellate Jurisdiction

Land Appeal Case no. 1/08

Between:

Vaisua Leupena
Appellant

And:

Laumua Ioata
Respondent

BEFORE THE CHIEF JUSTICE

S Earl for appellant/applicant
J Grover for respondent

Hearing: 26 May 2008
Judgment: 29 May 2008

Judgment

The appellant/applicant’s father was granted a government sublease of land in Vaiaku on which there is a four bedroomed house. His father died in 2004. The appellant and is family moved into the house in 2005 and shared the accommodation with his younger sister and her family.

The arrangement resulted in disagreements between the appellant and his sister and, in early 2007, the appellant moved out and, effectively, camped in the grounds of the house.

In July 2007, his sister brought a case in the lands court seeking to evict him. The appellant was ordered to leave the land. He appealed the decision to the Lands Courts Appeals Panel and it was heard on 1 February 2008. The decision was handed down on 15 February 2008 and he was ordered to vacate the house by 19 February 2008.

The appellant intends to appeal the Panel’s order to vacate. He paid the appeal fee on 18 February 2008 but was unable to file grounds of appeal because the Panel had not given a written judgment stating the reasons for the decision.

On the same day, he applied to the Senior Magistrate’s Court for a stay of the order to vacate pending appeal. The learned Senior Magistrate refused to grant a stay. He explained:

"The matter before the court is the application for stay of execution of order by the Lands Courts Appeals Panel made on 15 February 2008. ... The application is premature. It must come under section 26(1) of the Native Lands Act. The right of appeal is expressed under section 26(1) of the Native Lands Act. ... [Mr Earl] submits that the right of appeal is expressed under section 26(1) and (4) of the Act. The court responds that subsection (4) ... only applies to the court when determining the proper appeal."

He then referred to the High Court decision in Teagai v Nelu; Case No 2/04, 8 October 2004, as authority for the proposition that:

"...the period of 3 weeks, as the right of appeal, started to run from the date the parties received the written judgment of the Panel. In this appeal, the Panel has not given out its written judgment, so the 3 weeks period still has not started to run. ... the Panel has every right to make its decision. But the problem only comes into place when an aggrieved party appealed. The appellant will make its own ground of appeal."

The relevant part of section 26(1) provides that any person aggrieved by a judgment, decision or order of the Panel "may appeal against the same ... if, within 3 weeks of its being given or made, notice ... has been given to the Clerk of the Senior Magistrate’s Court". The learned Senior Magistrate is correct in rejecting any suggestion that subsection (4) is relevant to the right of appeal. It sets out the powers of the Senior Magistrate’s Court when determining an appeal.

In Teagai’s case, the appeal was directed at the issue of whether the three week period allowed for appeal starts to run from the date the decision was announced orally, in that case 13 April, or from the date the written judgment was delivered, namely 14 May. The appellant had filed his appeal within three weeks of the later date. The Court had little difficulty in concluding that time ran from the later date when the written judgment was delivered. Until then the case was incomplete.

In the present case, the learned Senior Magistrate took the view that the statement in Teagai’s case that the appeal period ran from the date of delivery of the written judgment means that it does not start until that judgment has been delivered. In terms of an appeal against the final judgment, that is true. The Panel hearing has not been concluded until delivery of the written judgment and so there will be no judgment from which to appeal until then.

However, in the present case, the oral judgment included an order that he should vacate the premises in a matter of four days. That was clearly going to be well before the written judgment and such an order should not have been made before the conclusion of the case.

The application for a stay requested an order that the "orders (sic) of the Land Appeals Panel dated 15 February 2008 requiring the appellant to vacate the leased land be stayed pending the hearing of an appeal in this matter".

Section 26(1) gives a right of appeal against "a judgment, decision or order" and clearly, therefore, gives a right to appeal an interlocutory order. That was the appellant’s remedy. If it had been appreciated that, as the written judgment had not been delivered and as a result the case before the Panel was not concluded, it would have been apparent that the order to vacate was interlocutory, the appellant had a right to appeal against any order and the time for appeal had to run from the date the order was made, namely 15 February2008.

In the majority of cases, it is likely that such an interlocutory appeal will need to await the final written judgment in order to allow the appellate court to know and consider the reasons for the interlocutory order. In most such cases, therefore, a stay will be the appropriate remedy and should be granted to preserve the status quo in order to avoid the risk that implementation of the order would render the appeal, if successful, nugatory.

The appeal is allowed and the decision of the Panel is stayed pending appeal against the order to vacate and any appeal against the final decision. The appeal is to be taken as having been filed on the date the appeal fee was paid and the grounds shall be filed within three weeks of the Panel’s written judgment or three weeks from the date of this judgment, whichever is the later.

Dated:29th day of May 2008

Hon. Gordon Ward
CHIEF JUSTICE