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Simeona v Apelu [2014] TVHC 9; Land Appeal 02.2013 (21 February 2014)

In The High Court of Tuvalu
HC. Land App. case no. 2/13
At Funafuti

Lands Appellate Jurisdiction

Between:

Mate Simeona
Semi Vine
Appellants

v

Iosia Apelu
Apete Apelu
Respondents

BEFORE THE JUDGE

Ms. Laigane Italel for the appellants.
Mr. Isala T Isala for the respondents

Appeal from decision of the learned Senior Magistrate dismissing an appeal brought by the appellants, there being no one to prosecute the appeal or the day fixed for hearing.

There had already been a number of adjournments.

The appellants had, in answer to a notice, come to court on 2nd July 2013 only to find this was a mistake. The matter was called on 8th July but the appellants did not know of that date. The respondents on 8th July secured an adjournment as they were not represented. The matter came on again on 30th July but again was adjourned. On 30th July a date was fixed for hearing on 23rd August.

From the affidavit of Vine Semi:

"11. The Senior Magistrate told both parties in court that the notice of hearing will be served on us at a later time to confirm the date of hearing.

12. However there was no notice served on us to confirm and remind us again of the date of hearing, which left us without the knowledge of the exact date of hearing. Thus it resulted in our non attendance of the court hearing on 23rd August 2013."

This is nonsense. On their own acknowledgement, the appellants knew of the 23rd August. The least they should have done when no notice of hearing came was themselves to have followed it up with the Senior Magistrate's Court to confirm or otherwise the date. No reason has been suggested why they did not follow it up. I therefore presume there was none. That they did not shows a lack of interest in the litigation and their own interests. This even allowing for the appellants being lay people and not versed in legal matters. They could have helped themselves by making an enquiry and they didn't do it.

There comes a time when patience runs out. I imagine that is what happened here. The Senior Magistrate ran out of patience. He exercised, perfectly properly, his discretion and struck out the appellants' appeal. I agree with what he did.

The appeal is dismissed.

Date 21st day of February 2014.

Hon. Robin Millhouse QC
JUDGE OF THE HIGH COURT OF TUVALU