In The High Court of Tuvalu
At Funafuti
Civil Appellate Jurisdiction

HC. Civ. App. case no. 1/09

Between:

Fetu Kaitapu Kilima, Kaumiti Talu 
and the Children of the late Talu and Neauti
Appellant

v
And:

Salati Lapi Feleti and the Children of the late Lapi Talu
Respondent

BEFORE THE CHIEF JUSTICE

I Isala for appellants
F Niko for respondents

Hearing: 22 October 2009 and 20 May 2010
Judgment: 25 May 2010

Judgment

1.This is an appeal from the decision of the learned Senior Magistrate on an appeal from the Lands Courts Appeals Panel. The case involves the ownership or right to possession of a house built on native land on Nanumea. The parties are the children or grandchildren of Talu and Neauti. The oldest son was Lapi Talu but he is now deceased and his children are the present respondents. The present matai is Kaumiti Talu, one of the appellants.

2. In 2008, the Tuvalu Government set funds aside to compensate people whose homes had been destroyed by storms in recent years. It appears that it was decided to give $9,000.00 for each building and the money was to be used solely for the rebuilding of the destroyed house. The house in this case was destroyed by cyclone Ofa in the early 1990s. At that time, it appears to be accepted that Lapi Talu was living in it with his family and, possibly, other members of the kaitasi. The government apparently left it to the Kaupule of each island to determine who should receive the funds although no direction appears to have been given as to how that should be ascertained. It also appears that the Nanumea kaupule considered that these matters were better determined by the Lands Court and sought the advice of that court. I repeat "it appears" because no direct evidence of any of the foregoing matters has been placed before the Court.

3. The Nanumea Lands Court advised the Disaster Coordinator in a letter dated 16 May 2008 that the money in respect of the house subject to this appeal "should be paid to the following people who are listed to their houses". The third entry is "Lapi Talu – Kaumiti Talu". I have not been provided with the decision of the Lands Court (if there was one apart from the letter of 16 May). I am advised from the bar table that there was one and that it ran to no more than two sentences. The subsequent proceedings suggest it ruled that the money should go to Kaumiti Talu. The present respondents appealed to the Lands Courts Appeals Panel and the decision, on 13 March 2009 was:

"Decision - The money ($9,000) should be paid to Salati Lapi and that she is responsible to give $1000 each to Kaumiti and Fetu."

4. The background to the decision of the Panel is set out in some detail under the heading, "Examination by the Panel":

"1. Lapi’s house was destroyed during the cyclone and he is entitled to compensation from the Government.
2. This appeal is to decide who the compensation is to be paid to.
3. The Kaupule informed us that the house belongs to Lapi Talute
4. Lapi has children, boys and girls. Salati is Lapi’s daughter.
5. Kaumiti and Lapi are brothers; he is also now the matai. Fetu is a sister to Lapi and Kaumiti.
6. Fetu and Kaumiti informed the court that the $9000 should be paid to Kaumiti so that he could rebuild the house that was destroyed by the cyclone.
7. Salati wants the money to be paid to them so that they can rebuild the house.
8. The Lands Court of Nanumea informed the Disaster Coordinator by letter dated 16/05/08 that the compensation should be to Kaumiti. 
9. Further, the kaupule informed that the house that was destroyed belonged to Lapi
10. Fetu wants the compensation to be given to Kaumiti so that they can divide and distribute the money to Talu and Neauti.
11. The house is registered to Lapi as provided by the Nanumea kaupule, the Panel has decided that the money is to be paid to Lapi’s children.
12. But as Kaumiti and Fetu have argued in this case that the house belongs to their mother, the court has decided to satisfy them by stating that $1000 should be given to each of them, and the rest of the money should be given to Lapi’s children.
13. Lapi’s children should be responsible to rebuild the house so that they can go and live in it.
14. Both parties agreed to the arrangement.

5. Subsequent proceedings suggest that the last paragraph must have been based more on hope than fact.

6. The difficulty which has bedevilled this case from the outset and throughout its passage through the Lands Court, Appeals Panel and, to an extent, the Senior Magistrates Court is that, whilst the money from the government was clearly for the purpose of rebuilding the destroyed house, the matter in contention and the sole issue to which all the decisions were directed is whom should receive the payment of the money. That, with respect to them all, is not a matter falling within the Native Lands Act.

7. Ironically, both parties, despite the implication in paragraph 10, insist their only intention, if it is paid to them, is to use it to rebuild the house - as, indeed, they must if the purpose of the grant has been correctly stated to this Court by counsel. Such a purpose appears to have escaped the Appeals Panel when they purported to siphon off $2,000 to be given as some sort of solatium to the unsuccessful parties, Kaumiti and Fetu, leaving a reduced sum for the others to use for the rebuilding.

8. The learned Senior Magistrate clearly spotted the difficulty that so many other issues had blinded the courts to the issue of whether or not the payment of the government money was in the jurisdiction of the lands courts but then, surprisingly, did not change the Appeals Panel decision which solely dealt with payment.

9. It is instructive to remember the rights of appeal to the Senior Magistrate and this Court under the Native Lands Act, Cap 22. Section 26, so far as relevant, provides:

26. (1) Any person aggrieved by a judgment, decision or order of a member or members of the Appeals Panel, sitting as an appellate tribunal under this Ordinance may appeal against the same on the ground that it was wrong in law to the Senior Magistrate’s Court … 

(2) Any person aggrieved by a judgment, decision or order of the Senior Magistrate’s Court under this section may with the leave of that court or of the High Court appeal against the same to the High Court …

(4) In determining an appeal under this section the High Court or the Senior Magistrate’s Court may give any judgment or decision and make any order that ought to have been given or made and make such further or other order as justice may require and give all necessary and consequential directions.

(I note in passing that no application for leave has been made but it appears no point is taken on that by the respondents.)

10. Whilst the jurisdiction of the High Court is not stated to be limited to an error of law, it is limited to appeals from the Senior Magistrate. Those will or should have been limited to consideration of an error of law and so an appeal to the High Court will necessarily be similarly limited.

11. The Senior Magistrates judgment starts by stating that the only ground of appeal to him was:

"That the Lands Appeal Panel erred in law and in fact in ruling that the $9000 housing assistance should be paid to Salati Lapi."

12. The relief sought was that the Appeals Panel decision be set aside and the initial decision of the Lands Court be reinstated. The Senior Magistrate pointed out:

"The Court feels that the only issue involved in this Land Appeal is the question of ownership of the house."

13. That correctly stated the position and was dealt with in his judgment in the following two paragraphs:

"Firstly, the appellant admits that the house is built on Neauti’s land and purposely for the Mataniu which is at that is (sic) with Lapi Talu. So, Lapi Talu is the matai at that time. At the moment, Kaumiti Talu is the matai. Supported by the letter dated 16/5/08 by the Lands Court of Nanumea. (Copy of this letter dated 16/5/08 by the Lands Court of Nanumea was not tendered as part of the submissions.] (Original emphasis)

The court says that it is not disputed that Kaumiti is the matai and submits further that it is not within the powers nor the functions of the Lands Court stipulated in the Native Lands Act, Chapter 22 to be involved in determining who is the rightful owner of the house."

14. However, the learned Senior Magistrate then unfortunately allowed himself to be drawn into other matters.

15. He considered whether the Appeals Panel was correct to accept the opinion of the Kaupule in paragraph 3 of their judgment and purported to rule on the powers of the Kaupule under the Falekaupule Act 1997. The Appeal Panel may have been incorrect to have accepted such advice but any determination of the powers of the Kaupule does not fall under the Native Lands Act.

16. In response to a suggestion that the money should be paid in accordance with the policy of the government, he correctly pointed out that he was unable to comment on that. His reason was because the policy document had not been provided to the court; the much stronger reason is because it is not a matter for the lands courts. Notwithstanding, he then expressed a view on the order of the Appeals Panel to share the money which is, again, not a matter for the lands courts.

17. He finally concludes:

"In conclusion, the court accepts the view that the issue must only [be] to the owner of the house but not the owner of the land in which this house is built."

18. Counsel at this hearing have also urged the Court to consider similar issues. I do not intend to do so. Errors of law they may be but they are not matters falling within the provisions of the Native Lands Act. 

19. The only issue properly appealed to this Court is the decision of the learned Senior Magistrate that it is not within the powers of the Lands Court to determine who is the rightful owner of the house.

20. Section 12 of the Native Lands Act provides:

12. Subject to sections 31(1) and 33 the court shall hear and adjudicate in accordance with the provisions of the Land Code or, where the code is not applicable, the customary law, all cases concerning land, land boundaries and transfers of titles to native land registered in the registers of native lands and any disputes concerning the possession and utilisation of land."

21. I accept, as was found by the Senior Magistrate, the section does not give power specifically to determine ownership of a building on the land unless, in some way, the relevant and critical factor springs from the right to possession or utilisation of the land. If so that is a matter on which the Lands Court may adjudicate.

22. This appeal should be dismissed on that ground. However, that does not cure the problem. The decision of the Appeals Panel indicates that it considered matters outside its jurisdiction with the result that its final decision, namely to whom the money should be paid, was also outside its jurisdiction, If this appeal is simply dismissed, it is apparent that the decision of the Appeals Panel will stand although the Panel adjudicated on a matter outside its power. The result may be that the question of the payment of that money will be taken to have been legitimately resolved when, in fact, it had no legal basis.

23. I consider this whole examination of the issues went wrong from the outset. I can fully understand the feeling of the Kaupule that the Lands Court was likely to have the information necessary to resolve the question of payment of the money even though it was not within their purview. However, I fail to see how they were or could have been parties to a hearing before that court.

24. If they simply sought advice from the Lands Court and the court gave it in the form of the letter of 16 May 2009, it would not be a hearing and would give no right of appeal to the Panel.

25. If, on the other hand, it arose from a case brought by one of the parties aggrieved by the Kaupule’s direction to pay the money to Lapi, the Land Court had no power to consider the question of the method of payment of the money from the government or the ownership of the house.

26. If the Lands Court was asked to determine the ownership of the house, it should not have done so. If the case sought a decision which related to the land or any matters arising under section 12, it could and should have heard it but its decision should have been on that issue and not have dealt in any way with the method of payment of the money.

27. I dismiss the appeal but must quash the decision of the Senior Magistrate not because he was wrong on the sole point of law but because allowing the decisions of either of the lower courts to stand will result in a decision which is ultra vires the power of the courts making them. In the exercise of my powers under section 26(4), I substitute an order that the decisions of the Lands Court and the Lands Courts Appeals Panel are quashed.

28. If any party wishes to pursue the action in the Lands Court he or she must specify clearly the cause of action and the question to be determined. The court should then consider whether the matter is within its jurisdiction. 

29. In the meantime, my suggestion, and it is no more than a suggestion, is that the Kaupule should pay the full sum of $9,000 to the person who, in their opinion, most closely complies with any direction from the government as to the purpose of and entitlement to that compensation.

30. The sum paid into Court under my previous Order made on 22 October 2009 shall remain in Court until application is made in writing by the Kaupule for its release. 

Dated:	 25th 	day of 	May	2010

Hon. Gordon Ward
CHIEF JUSTICE