Tuvalu Consolidated Legislation
LAWS OF TUVALU
REVISED EDITION 1978
ARRANGEMENT OF SECTIONS
1. Short title
3. Delegation of powers and duties by Lands Officer
TITLES TO NATIVE LAND
4. Indefeasibility of title
5. Restriction of alienation of native land
THE LANDS COURT
6. Constitution of lands court within each council’s area
7. Registrar of lands court
8. Oaths by members of lands court
9. Establishment of Appeals Panel
10. Appeals to Appeals Panel
11. Persons subject to lands court's jurisdiction
12. Certain powers of lands court relating to land
13. Dealings to be in accordance with Lands Code, etc.
14. Unregistered titles
15. Native wills
16. Native adoptions
17. Customary fishing rights
18. Native leases
19. Court registers
21. Court records
22. Quorum of court
23. Interested parties
24. Powers and procedure of court
26. Further appeal
27. High Court and Senior Magistrate’s Court may be assisted by assessors
28. Mining licences and Ordinances not to be affected by Lands Code
29. Amendment of Lands Code
30. Leases and sub-leases invalid until approved and registered
31. Approval and registration of certain leases and sub-leases
32. Approval of native leases
33. Term and extent of lease and sub-lease
34. Transfer of lease and sub-lease
35. Transfer of native leases
36. Implied covenants by lessee
37. Powers implied in lessor
39. Giving up possession of leased land
40. Passing of interest of lessee
41. Entry in register of determination of lease by lessor
42. Interpretation of this Part
43. General powers of surveyors
44. Clearance of boundary and other lines
45. Compensation for damage
46. Direction requiring attendance
47. Payment for boundary marks
48. Replacement of survey marks
49. Penalty for damaging survey mark
50. Removal of survey marks
52. Penalty for failure to comply with court's order
53. Penalty for fraudulent alteration, e.
54. Penalty for wilfully destroying, etc.
55. Meaning of register in sections 53 and 54
56. Unlawful occupation
57. Removal of or interference with boundary mark
58. Disturbance of court
59. Failure to answer summons
60. Proceedings where to be instituted
62. Interim injunctions
63. Regulations and fees
64. Regulations governing practice and procedure of lands court
5 of 1956
2 of 1959
4 of 1967
8 of 1968
6 of 1969
8 of 1971
9 of 1971
11 of 1971
15 of 1972
3 of 1973
(Cap. 22 of 1973)
13 of 1974
Commencement: 14th March 1957
An Ordinance relating to native land and registration of title thereto
1. This Ordinance may be cited as the Native Lands Ordinance.
2. In this Ordinance unless the context otherwise requires –
"the Appeals Panel" means the Lands Court Appeals Panel established by section 9;
"boundary mark" means and includes any survey stone, iron pipe or spike, wooden peg or post, concrete post or pillar or other survey mark and trees planted and marks made on trees or other fixtures to denote a boundary;
"Code" or "Lands Code" means the Tuvalu Lands Code;
"Commission" means the Native Lands Commission which was constituted under the terms of the Native Lands Commission Ordinance;
(Cap. 20 of 1952)
"council" means a local government council;
"court" means a lands court established by section 6;
"court register" means one of the registers of a court referred to in section 19;
"lease" does not include a sub-lease;
"Lands Officer" means the Lands Officer of Tuvalu;
"Leases Register" means the book kept for the purpose of registering leases under section 31(5);
"lessee" means the registered lease-holder;
"native adoption" means the adoption of one native by another in accordance with native customary law;
"native land" means land owned by a native or natives;
"native lease" means a lease of native land to a native where the term of the lease does not exceed 21 years and where the land the subject of the lease does not exceed 5 acres, and includes a sub-lease;
"native will" means any will, codicil or other testamentary instrument made by a native and duly attested in accordance with customary law;
"president" means the president of a court and, save in sections 19 (2), 39 and 41, any member of the court, for the time being presiding;
"register of native lands" means a register of native lands established in any island under the provisions of the Native Lands Commission Ordinance and maintained by the court under the provisions of this Ordinance;
(Cap. 20 of 1952)
"Sub-Leases Register" means the book kept for the purpose of registering sub-leases under section 31 (5);
"survey mark" means and includes any boundary mark or other mark and any beacon established and fixed by survey;
"title" means right, title and interest.
Delegation of powers and duties by lands Officer
3. The Lands Officer may delegate the exercise of any power or the performance of any duty conferred or imposed upon him by this Ordinance to any public officer.
TITLES TO NATIVE LAND
Indefeasibility of title
4. (1) Subject to the provisions of this section, titles to native lands –
(a) registered by the Commission as evidenced by a register of native lands, and
(b) registered by the court in pursuance of sections 14 and 19 (1) (b) as evidenced by a register of native lands shall be indefeasible.
(2) When the court has, under the powers conferred upon it by section 19 (1) (a), approved the transfer of any native land as a result of causes arising subsequent to the proceedings of the Commission on the island concerned, and such transfer has not been varied on appeal under section 25 or 26, the title thus obtained, as evidenced by the necessary rectification of the court register recording the new title to the land in the register of native lands, shall be indefeasible.
Restriction of alienation of native land
5. (1) Subject to the provisions of this Ordinance native land shall not be alienated, whether by sale, gift, lease or otherwise, to a person who is not a native.
(2) This section shall in no way prohibit or restrict the alienation of native land to the Crown, a council or a society registered
under the Co-operative Societies Ordinance.
THE LANDS COURT
Constitution of lands court within each council’s area
6. There is hereby established within the area of authority of each council, a lands court consisting of not less than 6 members, including the president, appointed by the council to the approval of the Lands Officer.
Register of lands court
7. There shall be a register of the court appointed by each council.
Oath by members of lands court
8. Members of a lands court shall be required to take the oath or affirmation set forth in Schedule 1 in the presence of the President of the Council or of the Lands Officer, as the case may be.
Establishment of Appeals Panel
9. There is hereby established a Lands Courts Appeals Panel which shall consist of a President and Vice–President and not less than 3 other members all of whom shall be appointed by notice by the Minister.
Appeals to Appeals Panel
10. All appeals from judgments, decisions or orders of lands courts shall lie in the first instance to one or more members of the Appeals Panel who shall in each case be designated by the President or in his absence by the Vice–President of the Panel.
Persons subject to lands court’s jurisdiction
11. All persons who own or who are eligible to own native lands shall be subject to the jurisdiction of the court.
Certain powers of lands court relating to land
12. Subject to sections 31 (1) and 33 the court shall hear and adjudicate in accordance with the provisions of the Lands Code or, where the Code is not applicable, the local 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 native land.
Dealings to be in accordance with Lands Code, etc.
13. Every attempt to transfer, transmit or otherwise deals with native land except in accordance with the provisions of section 12 shall be null and void and of no effect.
14. The court may, subject to the approval of the Lands Officer, register or cause to be registered in the register of native lands any title to native land which it finds to have existed at the time of the enquiry of the Commission held on the island but which was not registered by the Commission:
Provided that no judgment or order of the Commission shall thereby be reversed or amended.
15. The court shall be a court of probate in respect of native wills and shall have the power to adjudicate in accordance with native customary law on all cases arising from the administration and partition of native estates.
16. The court shall adjudicate on all cases brought before it concerning native adoptions and the conveyances of land which such adoptions may entail.
Customary fishing rights
17. The court shall adjudicate on all cases brought before it concerning the determination of native customary fishing rights.
18. (1) The court may approve or disallow all native leases as provided for in Part VI.
(2) The court may order the payment of rent or of damages for failure to perform any legal undertaking provided for in native leases and may, if necessary, enforce such order by seizure and sale of the goods of the party concerned to the amount fixed by the order, which may not, however, exceed the sum of $100.
(3) The court may, on the application of a lessor of a native lease and on proof that the lessee has committed a breach of any of the covenants of the lease whether expressed or implied, make an order of possession in favour of the lessor on such terms as it may deem just.
19. (1) The court shall keep registers in the form prescribed by the Minister and shall therein register or cause to be registered –
(a) all transfers of titles to land approved by the court;
(b) titles to garden pits, ponds, fish traps and sea walls constructed with its permission subsequent to the registration of titles by the Commission;
(c) all native wills deposited with the court;
(d) all native adoptions approved by the court;
(e) all native leases approved by the court.
(2) Only the members of the Appeals Panel, the Lands Officer, the president and the registrar of the court may make entries in the registers of native lands and other court registers.
(3) Each such entry shall make reference to the judgment or order in the court minutes on the authority of which the entry is made; and the reference shall include the number of the case or the page and number of the minute book where the judgment or order is recorded.
20. (1) If in any island a single woman is delivered of a child, the court may summon before it that woman and all other such natives as it may think fit and may enquire into the paternity of the child.
(2) Subject to anything to the contrary in the native customary law, the court may make an order regarding the paternity of the child and its future support in one of the following ways –
(i) If the father being a native accepts the child as being his, such child shall after reaching the age of 2 reside with the father or his relations and shall in accordance with native customary law inherit land and property from his father in the same way as the father’s legitimate children; or
(ii) If the putative father being a native does not acknowledge paternity of the child, but the court is satisfied that he is the father of the child, it may order that the child shall live with the mother and may transfer to the child title to any such portion of land or other property owned by the putative father as shall be necessary for the maintenance and support of the child; or
(iii) If the putative father being a native does not acknowledge paternity of the child, but the court is satisfied that he is the father of the child, it may order that the child shall live with the mother and may if such putative father owns no land which will be of assistance in maintaining the child, order monetary maintenance up to an amount not exceeding $2 per month or maintenance by supply of foodstuffs to be paid by the father to the mother, or whoever is supporting the child, until such time as the child reaches the age of 21, or the father inherits sufficient land to allow for a transfer as provided for in paragraph (ii), and in which event a transfer shall be ordered in substitution for the order for maintenance, and any sum of money or foodstuffs due under such a maintenance order may be claimed as a civil debt in the island court.
21. (1) The evidence given in all cases brought before the court, the observations of the members and summing up of the president and the judgment of the court shall be recorded by the registrar in the court’s minutes book which shall be kept in the manner prescribed by the Lands Officer; and the minutes of each case shall be signed by the registrar and the president of the court.
(2) The minutes of evidence, affidavits, certificates of representation and certified copies of any testamentary instruments which may have been tendered in evidence shall be preserved in the records of the council within whose area of authority the court is established or as the Lands Officer may otherwise direct.
Quorum of court
22. A quorum of the court shall be half the total number of members and for the determination of boundaries it shall be 5 members, or half the total number of members whichever is the less.
23. A member of the court shall not sit during the proceedings in any action in which he has an interest or for which he has been called as a witness.
Powers and procedure of Court
24. The court shall have the powers and observe the procedure set out in Schedule 2.
25. (1) Any person feeling himself aggrieved by any judgment, decision or order of the court may within 3 weeks of its being given or made and on payment of such fee as may be prescribed, give notice to the registrar of his desire to appeal and the registrar shall record the appeal in the prescribed form.
(2) Any member of the Appeals Panel or the Lands Officer may in any case extend the time within which notice of desire to appeal under this section is required to be given.
(3) A member or members of the Appeals Panel sitting as an appellate tribunal under this Ordinance shall have full jurisdiction over the whole proceedings as if those proceedings had been instituted and prosecuted before the member or members as a court of first instance and may re–hear the whole case and without prejudice to the generality of the foregoing may –
(a) set aside any judgment, decision or order of the court and substitute any judgment, decision or order which ought to have been made and make such further or other order as the case may require;
(b) direct the court which gave the judgment or decision or made the order or any other court to take further evidence either generally or on some particular point and in the meantime order the stay of any proceedings for the execution of any judgment or order;
(c) set aside the judgment or decision and order a retrial before the court which heard and determined the proceedings in question or any other court;
(d) allow or require new evidence to be adduced either by oral examination in court or by affidavit;
(e) 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.
(4) Before an appeal is determined under this section both the appellant and the respondent shall be entitled to make to the member or members of the Appeals Panel designated for the purpose of hearing and determining the appeal under section 10 –
(a) oral submissions either in person or by an advocate or other person;
(b) written submissions either in addition to or in substitution for oral submissions under paragraph (a).
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 if, within 3 weeks of its being given or made, notice in such form and on payment of such fee as may be prescribed has been given to the Clerk of 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 if, within 3 weeks of its being given or made, notice in such form and on payment of such fee as may be prescribed has been given to the Registrar of the High Court.
(3) The Senior Magistrate in the case of an appeal under subsection (1) or the Chief Justice in the case of an appeal under subsection (2) may extend the time within which notice of appeal under this section is required to be given.
(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.
(5) Before the High Court or the Senior Magistrate’s Court makes a determination under this section both the appellant and the respondent shall be entitled to make to the court both oral and written submissions in the manner prescribed by section 25 (4).
High Court and Senior Magistrate’s Court may be assisted by assessors
27. (1) The Chief Justice or the Senior Magistrate may appoint 2 or more persons whom he considers suitably qualified to serve as assessors to assist the court in the hearing and determination of any appeal under section 26.
(2) The validity of any proceedings shall not be affected by the absence therefrom at any stage of 1 or more or all of the assessors appointed under subsection (1).
(3) In giving his judgment or decision or in making any order the Chief Justice or the Senior Magistrate shall not be bound to conform to any opinion which may have been expressed by an assessor and the decision on every matter on which an opinion may have been so expressed shall be vested exclusively in the Chief Justice or the Senior Magistrate.
(4) Any assessor may require that there shall be written down and included in the record any opinion he may have expressed to which the Chief Justice or the Senior Magistrate does not conform.
Mining licences and Ordinances not to be affected by Lands Code
28. (1) Nothing in the Lands Code shall affect in any way the validity of any licence now or hereafter granted by the Crown conferring upon any person or persons the right to carry out mining operations within Tuvalu.
(2) Nothing in any Lands Code shall in any way invalidate, amend, or repeal any of the provisions of this Ordinance or any other law of Tuvalu.
Amendment of Lands Code
29. (1) The Minister at the request of a council within whose area of authority an island wholly or partly lies may by order amend the Lands Code in respect of its application to that island.
(2) The Minister shall cause a copy of every order made under this section to be laid before the Parliament at its sitting next following the date on which the order comes into operation.
Leases and sub–leases invalid until approved and registered
30. No lease or sub–lease of any native land shall be valid until it has been approved and registered in accordance with the provisions hereinafter contained.
Approval and registration of certain leases and sub–leases
31. (1) A lease or sub–lease of native of native land, other than a native lease, shall require the approval of the Minister.
(2) Any native or non–native who desires to obtain a lease of native land, other than a native lease, shall submit such lease for the inspection of the court of the island in which the land the subject of the lease is situate.
(3) A lease of native land shall not be approved by the Minister unless the court of the island in which the land is situate has confirmed –
(a) that the land is the property of the lessor;
(b) that the lessor is not prohibited under the Lands Code from alienating the land for the term proposed; and
(c) that the lessor will be left with sufficient land to support himself and his dependents:
Provided that paragraph (c) shall not apply to any island or place designated by notice by the Minister under this subsection.
(4) The Minister shall also satisfy himself:
(a) that the terms of the lease or sub–lease are not manifestly to the disadvantage of either party;
(b) that the agreement conforms with the requirement of regulations made under section 63; and
(c) that the fees prescribed have been paid.
(5) Upon these conditions being fulfilled the Minister shall cause a copy of such lease or sub–lease to be registered in a book to be kept for that purpose and known as the Leases Register or Sub–Leases Register as the case may be and shall cause an endorsement to be made on the lease or sub–lease recording the approval, the registered number and the date of registration.
Approval of native leases
32. (1) Any native desiring to obtain a native lease shall submit the proposed lease to the court of the island in which the land the subject of the native lease is situate.
(2) On being satisfied that the land to be leased is the property of the lessor and that the terms and conditions of the lease are fair both to the lessor and the lessee and that if the lease takes effect there will be sufficient land left to the lessor to support himself and his family, the court shall approve the lease and thereupon the president shall cause the registrar to enter a copy of the lease in the court register of native leases and to make an endorsement upon the lease to the effect that it has been approved and registered.
Term and extent of lease and sub–lease
33. No lease or sub–lease shall be granted for a longer period than 99 years or of any parcel of land of greater extend than 10 acres without the approval of the Minister.
Transfer of lease and sub–lease
34. No lease or sub–lease granted under the provisions of this Ordinance, other than a native lease, shall be assigned or transferred without the approval of the Minister in the case of leases or sub–leases granted under section 33; and any such assignment or transfer approved as aforesaid shall be registered in the Leases Register or Sub–Leases Register as the case may be.
Transfer of native leases
35. No native lease shall be assigned or transferred without the approval of the court of the island in which the land the subject of the lease is situate.
Implied covenants by lessee
36. In any lease or sub–lease there shall be implied unless expressly stated to the contrary the following covenants by the lessee, that is to say –
(a) that he will pay the rent thereby agreed at the times therein mentioned and all rates and taxed which may be payable in respect of the property during the continuance of the lease or sub–lease;
(b) that he will at all times during the continuance of the lease or sub–lease keep and at the termination thereof yield up the leased property in good repair, accidents and damage from fire, storm and tempest and reasonable wear and tear excepted.
Powers implied in lessor
37. In any lease or sub–lease there shall also be implied unless expressly stated to the contrary the following powers in the lessor, that is to say –
(a) that he may by himself or his agents at all reasonable times during the term upon giving to lessee 2 days’ previous notice enter upon the leased property and view the state of maintenance thereof, and may serve upon the lessee or leave at his last or usual place of abode or upon the property a notice in writing of any defect requiring him within a reasonable time to be therein mentioned to repair the same;
(b) that in case the rent or any part thereof shall be in arrear for the space of 3 months, it shall be lawful for such lessor to enter upon and take possession of such property;
(c) in the case of default being made in the fulfilment of any covenant whether expressed or implied in such lease or sub–lease on the part of the lessee and being continued for the space of 6 months, or in case the repairs required by the notice in writing specified in paragraph (a) not having been completed within the time therein specified it shall be lawful for such lessor by order of the court to enter upon and take possession of such property.
Sub - letting
38. There shall also be implied in any lease or sub–lease, unless specifically stated to the contrary, that the lessee will not sub–let the land comprised in the lease or sub–lease without the consent of the lessor.
Giving up possession of leased land
39. Where a lessee shall have delivered to the lessor his copy, if any, of the lease or sub–lease accompanied by a notice in writing stating that upon a given date he will give up possession of the land comprised in such lease or sub–lease the Minister, or in the case of a native lease the president, may, upon application to him by the lessor and production of such evidence as he may require that the lessee has abandoned the occupation of the land contained in the said lease or sub–lease make upon the lease or sub-lease a memorial of the surrender of such lease or sub-lease.
Passing of interest of lessee
40. Whenever any memorial shall have been made upon a lease or sub–lease in pursuance of the last preceding section the interest of the lessee in such land shall revest in the lessor, and production of such lease or sub–lease bearing such memorial shall be sufficient evidence that such lease or sub–lease has been so surrendered.
Entry in register of determination of lease by lessor
41. The Minister, or in the case of a native lease the president, upon presentation of proof to his satisfaction of lawful re–entry and recovery of possession by a lessor shall make or cause an entry to be made in the Leases Register, Sub–Leases Register or Court Register as the case may be and the lease or sub–lease shall thereupon determine but without releasing the lessee from his liability in respect of the breach of any agreements in such lease or sub–lease expressed or implied and the proper registering authority shall cancel such lease or sub–lease if delivered up to him for that purpose.
Interpretation of this Part
42. In this Part “surveyor” means a Government surveyor or any person authorised in writing by the Lands Officer to exercise the powers conferred on surveyors by this Part.
General powers of surveyors
43. (1) A surveyor may at all reasonable times enter and remain upon any land he is required by or under any Ordinance, by any court or by the lands Officer to survey or mark out and upon any neighbouring land.
(2) A surveyor may establish in or upon any land referred to in subsection (1) survey marks in such manner and number as he may thing fit and may dig up any ground for that purpose and may cut down and remove any trees, crops or other growth and remove or alter any fence or other property which may obstruct any survey or boundary line.
(3) In exercise of the powers conferred by subsection (2) as little damage as possible shall be done.
Clearance of boundary and other lines
44. (1) A surveyor may give a written direction to any person requiring him to clear any boundary or other line reasonably required for the purpose of marking out or conducting a survey of land in which that person has an interest.
(2) Any person who wilfully and without reasonable excuse, the proof whereof shall lie on him, fails to comply with a requirement imposed under this section shall be liable to a fine of $10 and to imprisonment for 1 month.
(3) Any court before whom a person is convicted of an offence under this section may order the convicted person, in addition to any penalty which may be imposed, to pay to the Lands Officer a sum equivalent to the expenditure incurred or likely to be incurred from public funds in clearing the boundary or other line in question.
Compensation for damage
45. (1) Whenever it appears that any trees, crops or other growth or any fence or other property will require to be removed, damaged or destroyed in exercise of a power conferred by section 43 or in compliance with a requirement imposed under section 44 a surveyor shall first assess the amount of compensation to be paid therefore and shall give to the owner thereof notice in writing of that amount.
(2) Any person dissatisfied with the amount of compensation assessed under subsection (1) may appeal against the assessment to the Lands Officer if within 3 weeks of receiving a notice referred to in that subsection notice in such form as may be prescribed has been given to the Lands Officer.
(3) The Lands Officer shall either dismiss the appeal affirming the amount assessed under subsection (1) or allow it in which case he shall determine the amount of compensation to be paid:
Provided that where an appellant so requests in the notice of appeal the Lands Officer shall refer the determination of the appeal in accordance with this subsection to any person whom he may with the approval of the appellant designate.
(4) The determination of an appeal under this section either by the Lands Officer or by the person designated under subsection (3) shall be final.
(5) The Lands Officer may in any case extend the time within which notice of appeal under this section is required to be given.
(6) No power conferred by section 43 shall be exercised and no requirement imposed under section 44 shall be complied with in the circumstances described in subsection (1) unless an assessment of the amount of compensation has first been made under that subsection.
Direction requiring attendance
46. (1) A surveyor may give to any person whom he reasonably believes may be of assistance a written direction requiring that person to attend at a time and place to be specified in the direction.
(2) A surveyor may further require any person who has attended in compliance with a requirement under subsection (1) to give him such information and other assistance as the surveyor may reasonably require for the purpose of ascertaining the boundaries, marking out or conducting a survey of any land.
(3) Any person who wilfully and without reasonable excuse, the proof whereof shall lie on him, fails to comply with a requirement imposed under this section shall be liable to a fine of $10 and to imprisonment for 1 month.
(4) The Lands Officer may authorise the payment out of public moneys to any person complying with a requirement under this section of such compensation as may be prescribed for any loss or inconvenience thereby occasioned:
Provided that where no compensation has been prescribed for the purposes of this section such compensation shall be paid as the Lands Officer deems in all the circumstances to be just and reasonable.
Payment for boundary marks
47. Where boundary marks or other survey marks are established by a surveyor on land at the request of any person the cost of so establishing those marks shall be recoverable by the Lands Officer from that person in any court.
Replacement of survey marks
48. (1) The Lands Officer may cause any survey mark established on land by a surveyor, whether under this Ordinance or otherwise, which is found to have been removed, damaged or destroyed to be replaced, re–established or restored and may in any court recover from the person responsible for that removal, damage or destruction the cost of so doing including the cost of any survey thereby occasioned.
(2) Without prejudice to subsection (1), the cost there referred to may in the case of the replacement, re–established or restoration of a survey mark established at the request of any person be recovered by the Lands Officer from that person in any court.
Penalty for damaging survey mark
49. (1) Any person who wilfully and without the written consent of the Lands Officer or a surveyor removes, damages, destroys, defaces, obliterates or in any other way whatsoever interferes with any survey mark established by a surveyor, whether under this Ordinance or otherwise, shall be liable to a fine of $100 and to imprisonment for 6 months.
(2) Any court before whom a person is convicted of an offence under this section may order the convicted person, in addition to any penalty which may be imposed, to pay to the Lands Officer a sum equivalent to the expenditure incurred or likely to be incurred from public funds in replacing, re–establishing or restoring the survey mark in question including the cost of any survey thereby occasioned.
Removal of survey marks
50. (1) Any person who wishes to have any survey mark removed or altered in any way, whether temporarily or permanently, may apply in writing to the Lands Officer setting forth the grounds of the application.
(2) Where in consequence of an application under subsection (1) the Lands Officer causes a survey mark to be removed or altered he may in any court recover from the person who made the application the cost of so doing and the cost of replacing, re–establishing or restoring the mark where the application was for its temporary removal or alteration including the cost of any survey thereby occasioned.
51. Any person who –
(a) wilfully makes any false statement or declaration in any dealing in land; or
(b) suppresses or conceals or aids and abets in the suppressing or concealing from the proper registering authority any material document, fact or matter; or
(c) wilfully makes any false declaration required under the provisions or made in pursuance of this Ordinance; or
(d) in the course of his examination before the court wilfully gives false evidence; or
(e) in the course of his examination before the court wilfully refuses to give evidence; or
(f) fraudulently procures any document of title or any instrument affecting title, or the making of any alteration thereto or erasure therefrom
shall be liable to a fine of $200 and to imprisonment for 1 year.
Penalty for failure to comply with court’s order
52. Any person who wilfully and without reasonable excuse, the proof whereof shall lie on him, fails to comply with any judgment, decision, order or direction of a lands court, a member or members of the Appeals Panel, the Senior Magistrate’s Court, the High Court, a magistrate or an island magistrate exercising jurisdiction under this Ordinance shall be liable to a fine of $100 and to imprisonment for 6 months.
Penalty for fraudulent alteration, etc.
53. Whosoever shall fraudulently alter, add to, erase, deface or destroy or permit to be altered, added to, erased, defaced or destroyed any register or any entry therein or any registered instrument shall be liable to a fine of $200 and to imprisonment for 1 year.
Penalty for wilfully destroying, etc.
54. Whosoever shall wilfully destroy, injure, mutilate, deface or lose any register or any registered instrument or shall wilfully allow any such register or registered instrument to be destroyed, injured, mutilated, defaced or lost whilst in his custody or keeping shall be liable to a fine of $200 and to imprisonment for 1 year.
Meaning of register in sections 53 and 54
55. In sections 53 and 54 any reference to a register means any register of native lands, court register, Leases Register or Sub–Leases Register.
56. (1) Complaints concerning unlawful occupation on native land may be lodged with the registrar of the court who shall issue a summons for the appearance before him of the party or parties so informed against and of any other person or persons whom it may be necessary or proper to examine as a witness or witnesses on the hearing of such information; and the court shall in the presence of the parties proceed to hear and determine such information and being satisfied of the truth thereof shall issue a warrant addressed to any police officer requiring him forthwith to dispossess and remove from such land any person in unlawful occupation of such land and the officer to whom such warrant is addressed shall forthwith carry the same into execution.
(2) The court may order such person to pay to the proprietor compensation for the period of the unlawful occupation and to pay to the Government any costs incurred in dispossession and removal.
(3) Any person who occupies land without a claim of right made in good faith shall be liable to a fine of $50.
Removal of or interference with boundary mark
57. No boundary mark shall be defaced, obliterated, moved, injured or otherwise impaired, destroyed or rendered useless except by a person duly authorised thereto by a court and any person acting in contravention of this section shall be liable to a fine of $50 and to imprisonment for 6 months.
Disturbance of court
58. Any person who within or close to the building where the court is sitting or in the presence or hearing of the president or members of the court when engaged in determination of boundaries wilfully misbehaves in a violent, threatening or disrespectful manner to the disturbance of the court or to the intimidation of suitors or others resorting thereto, or wilfully insults any member or officer of the court shall be liable to a fine of $50 and to imprisonment for 6 months.
Failure to answer summons
59. Any person summoned by the court who fails to appear at the time and date specified in the summons without good cause shall be liable to a fine of $10.
Proceedings where to be instituted
60. Proceedings for any offence created under this Part or Part VII shall be taken either before a magistrate’s court or before an island court:
Provided that in no case shall an island court pass a sentence which is not authorised by the Island Courts Ordinance.
61. The president or registrar of the court or any member designated by the president may administer oaths and take affidavits, declarations and affirmations.
62. (1) Any magistrate or island magistrate may in respect of any proceedings before a lands court by an interlocutory order grant an interim injunction in every case in which it appears to him to be just and expedient so to do.
(2) An order under subsection (1) may be made either unconditionally or on such terms or conditions as the magistrate or island magistrate thinks just.
(3) Where an injunction is granted under subsection (1) the magistrate or island magistrate as the case may be shall forthwith transmit a copy of the order to the registrar of the lands court before which the material proceedings are pending.
Regulations and fees
63. The Minister may make regulations to give effect to the provisions of this Ordinance, and in particular, but without prejudice to the generality of the power hereinbefore given, may prescribe –
(a) the manner in which leases hall be prepared, including the quality, size and condition of paper and quality and colour of ink to be used;
(b) the fees payable for the examination and approval of leases and for matters related thereto;
(c) the fees payable for the registration of leases and for matters related thereto;
(d) the fees which may be demanded and received by registrars of lands courts in connection with the practice and procedure of the courts and with appeals therefrom.
Regulations governing practice and procedure of Lands Court
64. Without prejudice to section 63 the Lands Officer may, with the approval of the Senior Magistrate, make regulations –
(a)regulating the practice and procedure of lands courts and of tribunals hearing first appeals therefrom;
(b) prescribing the forms and books to be used or maintained in connection with the practice and procedure of lands courts and with first appeals therefrom;
(c) prescribing the form of notice under section 45 (2):
Provided that nothing in this section shall empower the Lands Officer to prescribe the fees payable in respect of any matter.
“I, A.B. do swear that while serving as a member of the Lands Court, I will do right to all manner of people after the laws and usages of Tuvalu without fear or favour, affection or ill–will.
So help me God.”
“I, A.B. solemnly, sincerely and truly declare and affirm that while serving as a member of the Lands Court I will do right to all manner of people after the laws and usages of Tuvalu without fear or favour, affection or ill-will.”
POWERS AND PROCEDURE OF LANDS COURT
1. The court, either of its own motion or on the application of any party, may summon any person subject to its jurisdiction to attend to give evidence, or to produce documents, or to be examined.
2. If an applicant fails to appear at the time and place at which he has been required to attend the court and does not excuse his failure to the satisfaction of the court, the court may strike out his application; and if any party does not obey a summons issued under paragraph 1 and does not excuse his failure to the satisfaction of the court, then, after proof of service, the court may appoint a relative of such party to the proceedings as may reasonably be expected to have good knowledge of the history of the title to the land under dispute, or other matter in issue, to represent such party and may thereupon proceed to hear and determine the matter in issue.
3. In all matters before the court the parties or their representatives, or, in the case of a party who has failed to appear, his representative as appointed under paragraph 2 shall be present throughout the proceedings:
Provided that the president may clear the court if he considers that the court should discuss a submission or their verdict without the parties being present.
4. The following procedure shall be observed by the court -
(a) A statement of the matter in issue shall be made to the court by the applicant if it is in the nature of a claim against the other party or by the registrar if the matter arises out of the court's own motion.
(b) If there is an applicant, the court shall first hear his evidence together with that of any witnesses whom he wishes to call, and shall then proceed to hear the evidence of the other party together with that of his witnesses; and if there is no applicant the court may call such witnesses and in such order as it thinks fit.
(c) Any person appearing before the court to give evidence may be examined or give evidence on oath in the form, or with the ceremony that he declares to be binding on his conscience.
(d) After each party to the action has given evidence, the opposite party shall be entitled to ask any questions bearing on the evidence given. Similarly each party may ask questions of any witness for the other party after the latter has given evidence. All questions shall, however, be put through the president. The president may ask any questions at any stage in the proceedings, and may recall and question either party or any witness at any stage in the proceedings before judgment.
(e) During the course of the proceedings the president may discuss with the members of the court the native custom applicable to the matter in issue. After hearing all the evidence and discussing as necessary the native custom, the president shall summarise the facts and the custom for the benefit of the other members of the court. The court shall then consider its judgment, which shall be by a majority vote of all members eligible to take part in the matter in issue. In the event of an equal division of opinion amongst the members, the president shall have a casting vote in addition to his original vote. The judgment so arrived at shall be pronounced in open court by the president and shall be entered by the registrar in the minutes of the court.
(f) The court, unless cleared under paragraph 3, shall be open to attendance by members of the public.
Lands Code referred to in section 2
Tuvalu Lands Code
Under the provisions of section 28 of the Native Lands Ordinance 1956 the following Code was declared to be the Code of Laws governing native land rights from 1st July 1962 in each of the following islands -
5 of 1956
and from 25th July 1962 in the Island of NUI.
TUVALU LANDS CODE
Authority of owner over his property
(ii) (a) An absentee owner is free to leave his property to be cared for as he wishes. (This is applicable only to his own land and his share of joint lands.)
At Funafuti an absentee owner of Kaitasi land may not nominate a caretaker to care for his share or receive the fruits if another member of the Kaitasi group remains on Funafuti. Only if no member of the Kaitasi group remains on Funafuti may owners nominate caretakers.
(b) If an absentee landowner has not appointed a caretaker to look after his property then the lands court may choose a caretaker to take charge of his property for him.
(c) If an owner wishes to appoint someone to look after his property it will only be allowed by the lands court if the property is to be properly cleaned and maintained by the caretaker.
2. If any next-of-kin of an owner deliberately neglects that owner (and not on account of his own sickness, or because the owner refuses his help, or for any other reason) the owner may direct that that next-of-kin is to receive no share of his property; provided that during the owner's lifetime the neglectful next-of- kin has been successfully prosecuted for his neglect.
(ii) The distribution of the whole of an estate of an owner to someone other than his next-of-kin will only be allowed -
(a) if the next-of-kin have deliberately neglected an owner (and not because the owner has refused their help or for any other reason); or
(b) if a majority of the next-of-kin agree.
(iii) An owner has complete authority over the disposal of any lands he has received as a reward for his work, or which he has bought, or which he has received in exchange for a canoe or anything else or which he has received as an unreturnable gift land. He may dispose of them just as he wishes, but if dies issueless and he has no brothers and sisters and is intestate then the lands will be distributed to his paternal next-of-kin.
(iv) If an owner has received a gift which must revert to the donor's family if he, the recipient, or his issue dies issueless, then he may not give away such property.
Distribution of an estate and gifts inter vivos
(a) if any of his issue or next-of-kin who are not guilty of neglect would thereby be left in hardship, but if they have been guilty of neglect then the order will not be stopped because of any resulting hardship (see section 2); or
(b) if the shares of his next-of-kin are thereby grossly unfair.
(ii) The lands court shall first enquire into the opinion of the other children or next-of-kin of the owner before approving such a distribution or gift.
Nanumea, Nui, Vaitupu, Funafuti, Nukulaelae.
(iii) If a testator stipulates that his estate may not be divided, this provision must be upheld during the lifetime of his natural children. The estate may be divided after all his natural children are dead.
(iv) At Funafuti an owner may not distribute or give away his lands held kaitasi without the consent of the other members of the Kaitasi group.
A gift for nursing
(ii) If the members of the owner's family refuse to nurse him then a stranger may be rewarded for nursing him. An owner may not choose a nurse from outside his family unless he has successfully prosecuted them in the island court.
(iii) A gift for nursing shall not exceed 1 land and 1 pit if the donor's family nurse him, but if a stranger nurses him, or only 1 of his family and the others refuse to do so, then the gift may be increased.
(iv) A gift for nursing shall not be allowed when the donor is in a hospital which has full facilities.
(v) A man may also give his wife 1 land or 1 pit, or 1 land and 1 pit, and a woman may do so to her husband as a gift for nursing if they are not nursed by their children if they have any, or by their other next-of-kin if they have no issue.
Section 5 (v) above does not apply to Vaitupu and the following takes its place -
A man may also give his wife 1 land or 1 pit, or 1 land and 1 pit, and a woman may do so to her husband as a gift for nursing and such a gift shall return to the donor's family upon the recipient's death or remarriage.
(vi) (a) Gifts for nursing are given away and do not return to the donor's family if the recipient is issueless.
Nukulaelae, Nukufetau, Nui, Nunumea, Vaitupu
(b) A gift for nursing shall return to the donor's family if the recipient is issueless, but if the recipient has children the gift will not return.
(c) At Funafuti a gift for nursing is a gift during the lifetime of the recipient only and reverts to the donor or his family on the death of the recipient.
(vii) At Funafuti an owner may not distribute or give away his lands held kaitasi without the consent of the other members of the Kaitasi group.
A gift for kindness
At Nui a gift for kindness shall not exceed 1 land and 1 pit.
Nui, Nuitao, Nanumanga, Nanumea
(ii) A gift for kindness will never revert to the donor's family if the recipient is issueless.
(iii) A gift for kindness will revert to the donor's family if the recipient is issueless, but if he has children the gift will not return.
(iv) The person making a gift can decide if the gift will be held by the recipient and his issue in perpetuity or be returned to himself or his family after a period of time or on the death of the recipient. The conditions on which the gift is made must be registered in front of the lands court.
(v) At Funafuit an owner may not distribute or give away his lands held kaitasi without the consent of the other members of the Kaitasi group.
(vi) At Funafuti a gift for kindness is a gift during the lifetime of the recipient only and reverts to the donor's family on the death of the recipient.
Adoption as a son or daughter
(ii) An adopted child will receive his inheritance from his real father and mother in the same way as his brothers and sisters.
(iii) Gifts to an adopted child will revert to the donor's family if the recipient dies issueless. But if the recipient has children the donor loses his reversionary right and it is immaterial if his issue are later issueless.
(iv) At Funafuti an owner may not distribute or give away his lands held kaitasi without the consent of the other members of the Kaitasi group.
(v) At Nui Gifts of Adoption will revert to the donor or his issue upon the issueless death of the recipient or his issue irrespective of the number of generations after the gift. However the land shall revert to not more than 2 members of the donor's issue in order to prevent undue fragmentation.
Distribution of an estate decided by will
(ii) If any owner wishes to direct the distribution of his estate after his death then he should make a will. This may be written on any kind of paper, but it is better if he will use the will forms kept by the registrar of the lands court. When he has written the terms of his will then he must sign it in the presence of 2 witnesses who must also sign it. The will must be witnessed by 2 persons who are not members of the testator's family and who are not beneficiaries under the will. A new will may be substituted or a new condition may be written changing the terms of the first will, but such new wills or terms must both also be signed and witnessed. A written will, correctly witnessed, may not be changed by a verbal one but if there be no written will then a properly witnessed verbal bequest may be considered by the lands court.
A distribution of an estate where there is no will
9. The estate of an intestate owner or of an owner whose will has been stopped will only be settled when his next-of-kin or their representatives are present. If the next-of-kin can agree upon a distribution then this may be approved by the lands court. If no agreement can be reached then the estate will be divided as shown below -
Shares of children when property owner has more than one spouse
(i) If an owner has more than 1 spouse then the eldest son of the first spouse will be the administrator, or if there is no son by the first spouse but only daughters then the eldest daughter will be the administrator. A female administrator may if she wishes allow a son by a subsequent spouse to be the administrator. The issue of the first spouse will receive more lands than the issue of the second or subsequent spouses. However if some of the children of the owner will suffer hardship by such a distribution then the lands court may distribute the lands amongst the children irrespective of which spouse they are from.
Relative shares of children of an owner
(ii) In the distribution of an estate between the sons and daughters of an owner, the share of the eldest son shall exceed that of his brothers and the shares of share of sons shall exceed the shares of daughters. If there are no sons then the share of the eldest daughter will exceed that of her sisters.
At Vaitupu a landowner may distribute his estate between his sons and daughters in whatever proportions he wishes, provided the lands court is satisfied that all children are adequately provided for.
Distribution of joint estate of owner and wife
(iii) A father and a mother may jointly distribute their estate and a child may not claim against such a distribution just because he has received a share from his father only and not from his mother, or perhaps from his mother only and not from his father. If the child has received a fair share from the joint estate the distribution may be approved by the lands court.
Distribution of estate of issueless owner
(iv) (a) If an issueless owner is intestate or his will does not conform with this Lands Code, the distribution of the estate will be made by the lands court in such a manner that the lands will not be fragmented or subdivided and if there are insufficient lands for distribution to all his next-of-kin, then only those whose shares are small from previous distributions will receive shares. Men and women will share equally in the distribution of an issueless estate.
(b) The near family or next-of-kin of an issueless owner are firstly his real brothers and sisters if any, and secondly if he has no full brothers and sisters then his half brothers and sisters for the properties of their common parent and for gifts for kindness. If there are no other issue of his father or mother then the property which he has received from his father will be inherited by the brothers and sisters of his father or their issue and the property received from his mother will be inherited by the brothers and sisters of his mother or their issue.
(c) An owner has complete authority over the disposal of any lands he has received as a reward for his work, or which he has bought, or which he has received in exchange for a canoe or anything else or which he has received as an unreturnable gift land. He may dispose of them just as he wishes, but if he dies issueless and he has no brothers and sisters and is intestate then the lands will be distributed to his paternal next-of-kin.
Distribution of estate of an issueless bastard
(v) If a bastard dies issueless then his estate will be divided in the same way as any other issueless estate.
Subdivision of lands
(vi) The lands court should, if possible, refuse to cut up a land plot when distributing an estate-so that each land plot in a distribution will not be cut into several pieces and then shared out to all the next-of-kin, but land plots will be distributed undivided so that one next-of-kin will be given 1 or more whole plots and the lands will be distributed according to their size; in this way a next-of-kin who receives small lands will receive a larger number.
Distribution of property of absentee owner
(ii) Section 10(i) above does not apply to Funafuti.
Exchanges of property
11. Landowners may exchange their lands, but they must do so in the lands court. The lands court will stop an exchange only if there is a great difference in value in the properties to be exchanged. It is immaterial if the properties are both on 1 island or if one is on a different island. Exchanges of pits may be made similarly. The line of inheritance of a land received in an exchange will be that of the land which has been given away.
Sale of property
12. An owner may sell a land or a pit if his next-of-kin agree and if the lands court, having considered the matter, approve. Before reaching its decision the lands court should first consider if the lands remaining to the owner after the sale are sufficient for himself and his children.
Nanumea, Nukufetau, Funafuti
On these 3 islands the above section is not applicable and the following takes its place -
The sale of lands or pits for cash or other consideration is forbidden; but they may be exchanged or leased.
(ii) Any accretion which does not adjoin an existing land shall belong to the Government of the island and the lands court may give it to any indigent person. If the person awarded the land plants it properly then he will be confirmed in ownership, but if he neglects the land the lands court may take it from him and give it to another person.
Provision for wife
14. A husband whose wife has lived continuously with him for not less than 3 years immediately preceding his decease, and by whom he has no children, must make adequate provision for the said wife during her lifetime. On the death or the remarriage of the said wife the lands and pits given for her support must revert to the husband's family.
Village land: Nanumanga, Nui, Vaitupu, Nukufetau
Nanumea, Niutao, Nukulaelae
(b) The above is applicable to these 3 islands with the following additions -
But if any landowner suffers because he has not got sufficient lands elsewhere for the maintenance of his family, he can go before the lands court with the householders whose houses are on his land in the village and enter into an agreement with them for exchanging parts of their land outside the village for the house sites on his land in the village.
(c) If a householder not having land of his own in the village area wishes to build a house in the village area then the lands court may, if private agreement on the exchange of land plots cannot be reached, order a person owning a suitable plot in the village area exchange it with the person who wishes to build a house there for a land of that person’s elsewhere.
17. Kaitasi means those people who are living or eating together on 1 estate as joint-owners, e.g. brothers and sisters or the issue of some deceased brothers or sisters who were joint-owners. [Joint-owners in a Kaitasi estate may be more distantly related than brother and sister.] Whenever an estate is Vaevae and each individual joint-owner has taken his share from that estate then Kaitasi does not apply. It usually happens that Kaitasi property is listed under the name of 1 person who is the head of a family group and under his name or against pieces of land or garden pits on which they are Kaitasi are listed the names of the joint-owners. Those persons shown as Kaitasi are the only ones entitled to eat off the property shown against their names as Kaitasi property.
Regulations under Section 63
1. Lands Courts (Fees) Regulations
2. Native Lands Leases Regulations
3. Administration of Native Estates Regulations
(1) LANDS COURTS (FEES) REGULATIONS
1. These Regulations may be cited as the Lands Courts (Fees) Regulations.
2. The fees payable in respect of the matters specified in the Schedule shall be as therein prescribed.
3. Subject to these Regulations, such of the prescribed fees as are payable in a cause or proceeding shall be paid by the party concerned.
4. A court or the president of a court may on account of the poverty of any person order the waiver, reduction or refund of any fee.
5. (1) In the case of the determination of boundary -
(a) if the boundary claimed by one of the parties is found to be correct the other party or parties shall be ordered by the court to pay the prescribed fee or equal parts thereof;
(b) if none of the boundaries claimed by the parties is found to be correct each party shall be ordered by the court to pay an equal part of the prescribed fee.
(2) For the purpose of giving effect to an order under paragraph (1) the court may further order the refund either in whole or in part of any fee which has already been paid.
6. Whenever a cause, proceeding or other matter is commenced or arises on a court’s own motion the court may order payment of the appropriate prescribed fee by any person who has an interest therein or where there is more than 1 such person by all these persons in equal parts.
7. (1) Every person ordered by a court under these Regulations to pay a fee or part of a fee shall comply with that order within 14 days or within 14 days of the determination of an appeal arising out of proceedings in which the order was made.
(2) Any person who wilfully contravenes paragraph (1) shall be liable to a fine of $50 and to imprisonment for 3 months.
8. (1) If any person fails to comply with regulation 7 (1) payment of the amount of the fee or part of the fee may be enforced as if judgement for the payment of that amount to the registrar of the court concerned had been given against that person by a magistrate’s court or an island court exercising jurisdiction in the island or other place in which the lands court is established.
(2) A prosecution for an offence under regulation 7 shall not in any way be a bar to the enforcement of payment under this regulation.
ADMINISTRATION AND PARTITION OF ESTATES
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1. For the non-contentious administration and partition of an estate...................
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2. For the administration and partition of an estate where the claimants are not in agreement.......................................................................................
1. For the determination of a boundary.........................................................
2. For the confirmation of a boundary...........................................................
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REGISTRATION AND INSPECTION OF REGISTERS
1. For every entry in a register (unless a fee has already been paid in respect of any proceedings in consequence of which the entry is made in which case no fee shall be payable)...........................................................................................
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2. For each certified true copy of a folio in a register.......................................
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3. For an inspection of a register by a member of the public..............................
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4. For a search of a register by the registrar..................................................
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1. For an appeal against a boundary determination .........................................
2. For an appeal against any other determination or judgment ............................
1. For all causes or proceedings not otherwise referred to in this Schedule .............
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(2) NATIVE LANDS LEASES REGULATIONS
Citation and Application
1. These Regulations may be cited as the Native Lands Leases Regulations and shall apply to all leases and sub-leases of native land requiring the approval of the Minister under section 10.
Form of lease
2. (1) Every lease shall be prepared in triplicate in the form set out in Schedule 1:
Provided that any of the standard conditions in the form may be amended, deleted or added to by agreement between the parties to the lease.
(2) Forms in the form set out in Schedule 1 shall be provided without charge by the Lands Officer.
Form of sub-lease
3. Every sub-lease shall be prepared in duplicate in such form as the Lands Officer may require.
4. A plan of the land to be leased in such form and showing such particulars as the Lands Officer may require shall be attached to each copy of the lease or sub-lease.
Manner of execution of lease and sub-leases
5. (1) Every copy of a lease or a sub-lease shall be signed and amendments initialled by all the parties thereto.
(2) Where land is held by joint owners the signature of one joint owner shall be binding on all joint owners and the payment of rent to and acceptance by one of the joint owners shall be sufficient discharge for the lessee.
(3) Where a party to a lease or sub-lease is a body corporate the signatures of any 2 of its trustees or principal officers shall be sufficient to bind the body corporate.
(4) Where a party to a lease or sub-lease acts through a person holding a power of attorney the Lands Officer shall certify an accurate copy thereof to be a true copy and shall annex it to the copy of the lease or sub-lease to be retained in the appropriate register.
Language of leases and sub-leases
6. (1) The copy of every lease or sub-lease retained in the leases register or sub-leases register shall be in English and the other copies shall be in English or the vernacular.
(2) In the event of any discrepancy between the copies of a lease or sub-lease the copy retained in the appropriate register shall prevail.
Procedure for lease
7. Where as regards a proposed lease a lands court has confirmed all matters it is required to confirm by section 31 (3) the registrar shall forthwith transmit all the copies of the proposed lease to the Minister for his consideration.
Procedure for sub-leases
8. After signature by the parties all the copies of a proposed sub-lease shall be transmitted to the Minister for his consideration.
9. The fees payable in respect of the matters specified in Schedule 2 shall be as therein prescribed.
Regulation 2 (1) of the Native Lands Leases Regulations
Name of Landowner (“lessor”): .....................................................................
Postal Address: .........................................................................................
Name of Tenant (“lessee”): ............................................................................
Postal Address: ..........................................................................................
Name and no. of
land, village and Island
(“the demised land”)
Approx. area: ..............................
Agreed rent: ................................
($ per acre/hectare)
Terms of lease.........................years from..............................19...
CONDITIONS OF LEASE
1. This Lease is subject to Part VI of the Native Lands Ordinance (Cap. 22)
2. The lessee agrees to pay to the lessor the rent reserved in advance/arrear* on the .................. day of ......................of every year the first of such payments to be made on the ................. day of .................... .
[* Delete whichever is not applicable and insert date 5 years after date of first payment of rent]
3. The lessor and lessee agree that on the ...............day of .............. and at intervals of 5 years thereafter the rent shall be reviewed by agreement and in the absence of agreement that they shall refer the matter to the Lands Courts Appeal Panel for arbitration and shall accept the Panel’s determination.
*4. During the term of the lease the lessee shall be entitled to the exclusive use of all land, trees, plants and fixtures and shall pay all rates and taxes which may be payable in respect of the demised land.
[* Delete if not applicable]
*4. The lessee shall during the term of the lease subject as hereinafter provided be entitled to the exclusive use of the demised land. During the term of the lease the lessor shall retain the usufruct of the trees and plants on the demised land and shall pay all rates and taxes which may be payable in respect of the demised land. The lessee shall permit the lessor or his agent at all reasonable times to enter upon the demised land to cultivate and harvest the trees and plants. In the event of the lessee requiring the removal of any trees or plants he shall pay compensation therefor.
[* Delete if not applicable]
5. The lessee shall not sub-let the demised land or any part thereof without the written consent of the lessor which consent shall not be unreasonably withheld.
6. If the rent hereby reserved or any part thereof shall be unpaid for 3 months after having become payable (whether formally demanded or not) the lessor may at any time thereafter re-enter and take possession of the demised land or any part thereof in the name of the whole.
7. The words "lessor" and "lessee” shall include their successors in title.
DESCRIPTION OF THE DEMISED LAND
as indicated on the annexed plan.
SCHEDULE OF TREES, PLANTS AND OTHER FIXTURES
Compensation amounting to $......... has been paid to the lessor on P.V. No..........dated the.........day of..........in respect of the following -
Further compensation -
IN WITNESS the parties hereto agree to the terms and conditions of this lease as herein set out.
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By Court Case No. ............... of the Lands Court of .................................................
it is confirmed that -
(a) the land to be demised is the property of the lessor;
(b) the lessor is not prohibited under the Lands Code from alienating the land for the term proposed; and
(c) the lessor will be left with sufficient land to support himself and his dependents.*
[*Delete if the land is wholly within an island or place to which paragraph (c) does not apply.]
I am satisfied that -
(a) the terms of this lease are not manifestly to the disadvantage of either party;
(b) that the agreement conforms with the requirement of all regulations made under section 63 of the Native Lands Ordinance;
(c) that all the fees prescribed by such regulations amounting to $....... have been paid on RR No...............dated.................
I approve the lease.
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(a) For surveying land, preparing a plan and providing 3 or 2 copies thereof for a lease or sub-lease– for each boundary mark established.........................
(b) For preparation of leases - per set of 3 copies.....................................
(c) For preparation of sub-leases - per set of 2 copies ...............................
(d) For submission of proposed lease to the lands court under section 31(2)...
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(e) For registration under section 31 (5) or 34 ......................................
(f) Making a memorial of surrender upon a lease or sub-lease under section 39
(g) Making an entry in Leases Register or Sub-Leases Register under section 41..........................................................................................
(h) For searching Leases Register or Sub-Leases Register
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(i) For preparation of a copy of a document registered under section 31 (5) or 34 – per page...........................................................................
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(3) ADMINISTRATION OF NATIVE ESTATES REGULATIONS
1. These Regulations may be cited as the Administration of Native Estates Regulations.
Tuvalu Lands Officer administer native estates
2. (1) Where on the death of any native ordinarily resident in Tuvalu it is found that he died intestate or his will is held by the lands court or other competent court to be invalid the Lands Officer, on notice being given to him by the lands court or other competent court or by or on behalf of the next-of-kin of the deceased person, shall assume in respect of the estate of the deceased person the powers conferred and the duties imposed on the administrator by these Regulations.
(2) Any native ordinarily resident in Tuvalu may by will or otherwise appoint the Lands Officer to be the administrator of his estate either solely or jointly with some other person and on his death the Lands Officer shall assume in respect of the estate of the deceased person the powers conferred and the duties imposed on the administrator by these Regulations either solely or jointly with the other person appointed an administrator, as the case may be.
Powers and duties of administrators
3. (1) The administrator shall-
(a) receive all the property of the deceased person both moveable and immovable and hold the same as trustee until a final distribution is made;
(b) apply to the lands court for directions as to the distribution of the deceased person’s estate and shall comply with all such directions and with all directions as to distribution of the deceased person’s estate given by any tribunal on appeal from a judgement, decision or order of the lands court;
(c) keep proper records and books of account in respect of each estate of which he is administrator and when required to do so by the Principal Auditor shall forthwith make all such records and books of account available for inspection by the Principal Auditor;
(d) deposit all such funds as may come into his possession as administrator of a deceased person's estate with the Minister responsible for finance in the name of the deceased person.
(2) The administrator may -
(a) from such funds as he may hold as administrator for the benefit of the state of a deceased person -
(i) make such advances to the widow or other person who was dependent on the
deceased person as he may consider reasonable and necessary for the relief of hardship;
(ii) discharge any debts due from the estate;
(b) collect any debts due to an estate of which he is administrator;
(c) on behalf of any estate of which he is administrator bring and maintain any suit in any court of competent jurisdiction and likewise defend any suit; but the administrator shall in no case be personally liable as a defendant in any such suit.
4. The fees payable in respect of the matters specified in the Schedule shall be as therein specified.
SCALE OF FEES
1. On the administration of an estate, where the amount of the monetary estate -
(a) does not exceed $1,000............
(b) exceeds $1,000......................
1½ % on the first $1,000
and 1% on the excess.
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2. For application to the Lands Court under regulation 3(1)(b) ..............................
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3. For distribution to each beneficiary ........