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Simeona v Apelu [2014] TVCA 2; Land Appeal 2 of 2014 (30 August 2014)

IN THE COURT OF APPEAL OF TUVALU

Held At Funafuti

Land Appellate Jurisdiction

Land Appeal Case No: 2 of 2014

Between:

MATE SIMEONA & SEMI VINE
Appellants

And:

IOSIA APELU & APETE APELU
Respondents

Introduction

[1] This is an appeal against a decision of the High Court given on 21 February 2014 which dismissed an appeal against a decision of the Senior Magistrate given on 23 August 2013. Under the later decision the Senior Magistrate dismissed an appeal from the Land Court Appeal Panel given on 8 April 2013.

[2] The series of proceedings which led to this appeal commenced with a decision of the Lands Court of Funafuti on an application by one of the present respondents, Mate Simeona, "to confirm the ownership of the land known as Teone."

[3] Oliana was the appellant before the LCAP. The current respondents, Iosia and Apete, were by an order of the Senior Magistrate on 23 August 2013 substituted for Oliana as one of the parties to the appeal before the Senior Magistrate.

[4] The decision of the LCAP given on 8 April 2013 after a hearing on 15 March 2013 is confusing. The minutes of the hearing state that Oliana's explanation for the appeal was:

1. I was not notified of the hearing on 1 November 2012
2. Therefore the proceedings on 1 November 2012 was not fair as we were not present in court
3. The decision of the Lands Court that we do not have a land at Teavamago, and
4. We know very well that our grandfather Teagai owns a land at Teavamago
5. I humbly ask the Lands Court Appeal Panel to set aside the decision of the Lands Court on 1 November 2012.

[5] The reasons and decision of the LCAP read:

1. The appellant Oliana Stanley's appeal against the respondents Mate Simeona and Semi Vine regarding the decision of the Lands Court on 1 November 2012 that Teagai (appellant's grandfather) does not own a piece of land at Teone but at Teavamago.
2. Explanations that the court had received from both parties confirm that the Lands Court hearing on 1 November 2012 was made without the presence of both parties in Court.
3. The Court explained properly to both parties that Teagai Apete (appellant's grandfather) owns a piece of land at Teavamago but not at Teone. According to the cadastral map of Funafuti, the place known as Teavamago connects to the place known as Teone going further to the main wharf.
4. Therefore from all the evidence and explanations before the Court, it has reached a decision that:

• a. The decision of the Lands Court on 1 November 2012 is set aside as both parties were not present during the hearing.
• b. The Court has confirmed and found out that Teagai Apete (appellant's grandfather) has a land at Teavamago and Mate Simeona (respondent 1) has a land at Teone. These lands are connected to each other.

[6] The confusion arises from the LCAP statement that the appeal was by Oliana against a decision that she did not own land at Teone but at Teavamago when her own explanation was that the Land Court held she did not own land at Teavamago. That confusion is not resolved by the Land Court's minute.

[7] Paragraph 4(b) of the LCAP's finding confirms that Teagai, Oliana's grandfather had land at Teavamago and Mate Simeona has land at Teone. Despite the confusion this Court is of the view that the LCAP in allowing Oliana's appeal was clearly holding that Oliana, and not Iosia and Apete, was the owner of Teavamago. The parties by their subsequence actions including this appeal have accepted that the LCAP determined that the present respondents, Iosia and Apete, are the owners of Teavamago.

[8] The appellants Mate and Semi then appealed to the Senior Magistrate. Their grounds of appeal in a notice of appeal filed on 2 May 2013 were:

1. The Panel erred in law by allowing the Appeal of the Respondent to be heard without any solid evidence to prove her case.
2. The Panel erred in law by allowing the Appeal, as the decision made was similar in meaning to the decision made by the Lands Court dated 1st November 2012.
3. The Appellant further maintains the right to add further grounds of appeal before the court hearing date.

[9] The appeal came before the Senior Magistrate on 8 July 2013 when the appellants did not appear. An adjournment was granted to allow the respondents to instruct a lawyer.

[10] The next hearing was on 30 July 2013 when the appellants advised that they had not been able to retain a lawyer. The Senior Magistrate asked counsel for the respondent if he would be available to appear on the 23 August 2013. The minute of the Senior Magistrate included:

Court explains to the appellants the need to hear this appeal before counsel Isala left on again on the 26th August 13. Appellants agreed.
Adjourn this appeal to Friday, the 23rd August 2013 at 0900hrs. Parties to attend.

[11] When the case was called on the 23^rd August 2013, the appellants were not in court. The Senior Magistrate adjourned the case to give the appellants time to appear. The Court resumed at 9:40 am hut the appellants were not present. There was no information on their whereabouts so the Senior Magistrate dismissed the appeal "because the appellants do not turn-up."

[12] The appellants appealed to the High Court on the ground that the Senior Magistrate "erred in law in dismissing the appeal based solely on the absence of the appellants."

[13] In a decision given on the 21^st February 2014, Millhouse J dismissed the appeal. The judge noted that there had been a number of adjournments before the Senior Magistrate; that the explanation given by the appellant Semi Vine for non appearance on 23 August 2013 was nonsense; and the Senior Magistrate exercised his discretion and struck out the appeal.