Island Courts Act

Link to law: http://tuvalu-legislation.tv/cms/images/LEGISLATION/PRINCIPAL/1965/1965-0010/IslandCourtsAct_1.pdf
Published: 1965-10-12

Island Courts Act


2008 Revised Edition

CAP. 7.32






ISLAND COURTS ACT

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ISLAND COURTS ACT

Arrangement of Sections
Section

PART I - PRELIMINARY 5
1 Short title and commencement in islands .............................................................. 5
2 Interpretation.......................................................................................................... 5

PART II - CONSTITUTION, JURISDICTION AND POWERS OF
ISLAND COURTS 6
3 Constitution of island courts .................................................................................. 6
4 Territorial extent of jurisdiction of island courts ................................................... 6
5 Powers of island courts .......................................................................................... 7
6 Sentences which an island court may pass............................................................. 7
7 Dismissal of Charges ............................................................................................. 8
8 Treatment of young offenders................................................................................ 8

PART III - OFFICERS OF ISLAND COURTS 9
9 Composition of island courts and appointment of island magistrates.................... 9
10 Decisions of island courts .................................................................................... 10
11 Procedure where island magistrate is unable to adjudicate by reason of

personal interest, etc. ........................................................................................... 10
12 Clerk of court ....................................................................................................... 10
13 Execution and service of processes...................................................................... 11
14 Protection of island magistrates and officers of island courts.............................. 11

PART IV - THE LAW TO BE APPLIED IN, AND THE PRACTICE
AND PROCEDURE OF, ISLAND COURTS 12
15 Language.............................................................................................................. 12
16 Repealed by Act 8 of 1987................................................................................... 12
17 The procedure to be followed .............................................................................. 12
18 Sittings ................................................................................................................. 12

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19 Adjournments .......................................................................................................12
20 Sittings to be public..............................................................................................13
21 Issue of process ....................................................................................................13
22 Mode of securing attendance of accused persons, parties and witnesses.............13
23 Examination on oath.............................................................................................13
24 Records and returns..............................................................................................13
25 A cause may be reported for transfer ...................................................................14
26 Transfer of causes by a magistrate .......................................................................14
27 Effect of an order of transfer ................................................................................14

PART V - APPEALS FROM ISLAND COURTS 15
28 Civil appeals.........................................................................................................15
29 Criminal Appeals..................................................................................................15
30 Discretionary power of a magistrate’s court to entertain appeals ........................15
31 Summary dismissals of criminal appeals .............................................................15
32 Powers of magistrate’s court in regard to criminal appeal ...................................16
33 Additional evidence in any criminal appeal .........................................................16
34 Power of magistrate’s court in regard to civil appeal...........................................17
35 Further evidence at civil appeal............................................................................17
36 Neither notice of appeal nor appeal to operate as stay of execution ....................17

PART VI - REVISION OF DECISIONS OF ISLAND COURTS 17
37 Review by magistrate’s court of island court cases..............................................17

PART VII - MISCELLANEOUS 19
38 Concurrent jurisdiction of judges and magistrates ...............................................19
39 Fees and costs.......................................................................................................20
40 Payment of fees and costs ....................................................................................20
41 Regulations...........................................................................................................20


SCHEDULE 1 22

JURISDICTION IN CIVIL CAUSES AND MATTERS 22

SCHEDULE 2 23

JURISDICTION IN CRIMINAL CAUSES AND MATTERS 23

Supporting Documents

ENDNOTES 25

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ISLAND COURTS ACT


AN ACT TO PROVIDE FOR THE CONSTITUTION OF ISLAND COURTS,
FOR THE APPOINTMENT OF ISLAND MAGISTRATES AND OTHER

OFFICERS THEREOF AND FOR THE REGULATION OF THEIR
POWERS, DUTIES AND JURISDICTION AND FOR APPEALS FROM,

AND REVISION OF, THE DECISIONS OF ISLAND COURTS AND FOR
MATTERS CONNECTED THEREWITH1

Commencement [12th October 1965]

PART I - PRELIMINARY

1 Short title and commencement in islands
This Act may be cited as the Island Courts Act, and shall come into operation on
such date or dates and in such island or islands as the Governor-General may by
notice appoint and different dates may be appointed for different islands.2

2 Interpretation
In this Act, unless the context otherwise requires —

“cause” shall include any action, suit or other original proceeding between a
plaintiff and a defendant and any criminal proceeding;

“cause of action” in suits founded on contract shall not necessarily mean the
whole cause of action; but a cause of action shall be deemed to have arisen
within the jurisdiction if the contract was made therein, though the breach
may have occurred elsewhere, and also if the breach occurred within the
jurisdiction, though the contract may have been made elsewhere;

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“island” includes any atoll and any chain of islands about a single lagoon or
connected by a continuous reef formation and any place which the Governor-
General may by notice declare to be an island for purposes of this Act;

“island court” means an island court established under this Act;

“island magistrate” means a person for the time being appointed as such
under section 9;

“matter” includes every proceeding in a court not in a cause;

“suit” includes action, and means a civil proceeding commenced by writ of
summons or such other means as may be prescribed and does not include any
criminal proceeding;

“warrant”, in relation to the constitution or jurisdiction of any island court,
means the warrant appointing members to such island court as provided for in
section 9(2).

PART II - CONSTITUTION, JURISDICTION AND POWERS OF
ISLAND COURTS

3 Constitution of island courts
(1) There shall be and are hereby constituted throughout Tuvalu courts of

summary jurisdiction, to be known as island courts, subordinate to
magistrates’ courts, and to be presided over by persons appointed under the
provisions of this Act to be island magistrates and each island court, subject to
the provisions of any other Act, shall exercise such jurisdiction as is by this
Act provided.

(2) There shall be an island court in and for each such island as the Governor-
General, acting in his discretion, shall by notice direct.

(3) Any power, authority, function or discretion vested in an island court by this
or any other Act or law shall be possessed and may be exercised by island
magistrates sitting as in this Act provided.

4 Territorial extent of jurisdiction of island courts
Subject to any express provisions contained in this or any other Act or in its warrant,
an island court shall exercise jurisdiction within the limits of the island within which
it is situated and its jurisdiction shall extend over any territorial waters adjacent to
such island as well as over inland waters within and adjacent to such island.

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5 Powers of island courts
(1) Subject to the other provisions of this Act and of any other law for the time

being in force in Tuvalu, an island court shall have and exercise the
jurisdiction in civil causes and matters for the time being set out in Schedule 1
and in criminal causes and matters for the time being set out in Schedule 2.

(2) The Governor-General, after consultation with the Chief Justice, may by
notice add to, amend or delete any part of Schedules 1 or 2.

6 Sentences which an island court may pass
(1) An island court may, in any case in which such sentences are authorised by

law, pass the following sentences —
(a) imprisonment for a term not exceeding 6 months; or
(b) a fine not exceeding $250;3 or
(c) both such imprisonment and such fine.

(2) An island court may pass any lawful sentence combining any of the sentences
which it is authorised by law to pass.

(3) In determining the extent of an island court’s jurisdiction under subsection (1)
to pass a sentence of imprisonment, the island court shall be deemed to have
jurisdiction to pass the full sentence of imprisonment provided for in the
subsection in addition to any term of imprisonment which may be awarded in
default of payment of a fine, costs or compensation.

(4) When a person is convicted at one trial of 2 or more distinct offences the court
may sentence him, for such offences, to the several punishments prescribed
therefor which such court is competent to impose; such punishments when
consisting of imprisonment to commence the one after the expiration of the
other in such order as the court may direct, unless the court directs that such
punishments shall run concurrently.

(5) In the case of consecutive sentences imposed by an island court in respect of 2
or more distinct offences arising out of the same facts it shall not be necessary
for such island court to send the offender for trial before a higher court, by
reason only of the aggregate punishment for the several offences in respect of
which such sentences are imposed being in excess of the punishment which it
is competent to impose on conviction of a single offence:

Provided that the aggregate punishment imposed in the form of consecutive
sentences shall not exceed twice the amount of punishment which such island
court is competent to impose in respect of one offence in exercise of its
ordinary jurisdiction.

(6) For the purposes of appeal or review the aggregate of consecutive sentences
imposed under this section in case of convictions for several offences at one
trial shall be deemed to be a single sentence.

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(7) An island court may, in lieu of any other punishment, make an order placing
an offender under the supervision of a probation officer or any other suitable
person chosen by the court for that purpose for a period not exceeding 1 year
and attach such conditions to the order as the court may think fit; and in the
event of the offender’s failure to comply with the order or of the commission
of a further offence during the period of supervision, he shall appear before
the island court which made such order and may be sentenced in respect of the
first offence; and any sentence then passed upon him shall be in addition to
any sentence imposed on him in respect of such further offence.

(8) Whenever an island court imposes a fine, or a sentence of which a fine forms
a part, such court may, when passing judgment, order the whole or any part of
such fine to be paid to any person in compensation for any loss or injury
caused by the offence or in defraying any expenses incurred in bringing or
prosecuting the charge.

7 Dismissal of Charges
Notwithstanding that it thinks any charge against an accused person is proved, an
island court, if it is of the opinion that it is not expedient to inflict punishment, may
make an order dismissing the charge either absolutely or conditionally.

8 Treatment of young offenders
(1) In this section, unless the context otherwise requires, the following

expressions have the meanings hereby assigned to them, that is to say —

“child” means any person under the age of 14 years;

“young person” means a person who has attained the age of 14 years and is
under the age of 17 years.

(2) No island court shall impose imprisonment on any child.

(3) No island court shall impose imprisonment on any young person unless —
(a) he is over the age of 15 years; and
(b) unless the island court, having obtained and considered information

about the circumstances of the offence and his age and character, is of
the opinion that no other method of dealing with him is appropriate.

(4) No imprisonment imposed under subsection (3) shall exceed one month in
duration.

(5) Where a child or young person is convicted by an island court of any offence
for the commission of which a fine, damages or costs may be imposed, if such
island court is of the opinion that the case would be best met by the
imposition of a fine, damages or costs, whether with or without any other
punishment, the island court may, and, in the case of a child, shall order that
the fine, damages or costs awarded be paid by the parent or guardian of the

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child or young person convicted, instead of by such child or young person,
unless the island court is satisfied that the parent or guardian cannot be found
or that he has not conduced to the commission of the offence by neglecting to
exercise due care of the child or young person.

(6) In the case of any child or young person convicted by it of any offence, an
island court may order his parent or guardian to give security in some sum not
exceeding $20 for his good behaviour for any period not exceeding 1 year.

(7) An island court may require the attendance before it of any parent or guardian
of any child or young person charged with an offence before the court and if
such parent or guardian will not appear voluntarily may compel his attendance
in like manner to that in which witnesses are compelled to attend.

(8) In lieu of any other sentence which an island court may lawfully impose on
any male child or male young person, the provisions of section 6(1) to the
contrary notwithstanding, it may order his parent or guardian to cane him with
a specific number of strokes of a cane not exceeding, in the case of a child, 6
strokes, and in the case of a young person, 10 strokes; and any strokes so
ordered shall be administered in accordance with such regulations as may, for
the time being, be in force and in the presence of a member of the island
court.

(9) Any parent or guardian who without lawful justification or excuse fails to
obey an order given under subsection (8) shall commit an offence triable
summarily by an island court, or other court of competent jurisdiction, and
shall be liable to a fine of $10.

PART III - OFFICERS OF ISLAND COURTS

9 Composition of island courts and appointment of island magistrates
(1) Each island court shall be composed of 3 members, to be known as island

magistrates, and who shall be president, vice-president and ordinary member
of the court respectively; and the president shall take precedence of the other
members and the vice-president shall take precedence of the ordinary
member.

(2) The Governor-General, acting in accordance with the advice of the Public
Service Commission, and subject to the approval either general or specific of
the Chief Justice or a person authorized by him for the purpose, may appoint
fit and proper persons to be the members of each island court, declaring which
members shall be president, vice-president and ordinary member respectively,
and, acting in accordance with the advice of the Public Service Commission
and subject to the approval, either general or specific, of the Chief Justice or a
person authorized by him for the purpose, may further appoint any person or

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persons to be temporary members for the purpose of filling any vacancy that
may occur due to the temporary incapacity of a member:

Provided that —
(a) a member of a Kaupule established under section 5 of the Falekaupule

Act; or
(b) a member of a lands court under section 6 of the Native Lands Act;4 or
(c) a member of the Lands Courts Appeals Panel under section 9 of the

Native Lands Act,

is not eligible for appointment as an island magistrate.5

(2A) The Governor-General acting in accordance with the advice of the Public
Service Commission and subject to the approval, either general or specific, of
the Chief Justice or a person authorized by him for the purpose, may remove
from office an island magistrate.

(3) Save as is otherwise expressly provided by any law for the time being in force
in Tuvalu, every civil and criminal proceeding in any island court and all
business arising therefrom shall be heard and determined by the 3 members of
such court sitting together.

10 Decisions of island courts
Any decision, whether final or not, of an island court shall be that of the 3 island
magistrates of which such court is composed, or failing agreement between them,
the decision of the majority of them shall prevail.

11 Procedure where island magistrate is unable to adjudicate by reason of
personal interest, etc.
Where an island magistrate is a party to a cause or matter or is unable from personal
interest or other sufficient reason to adjudicate on any cause or matter, he shall be
replaced as a member of the court during such incapacity in accordance with the
provisions contained in the court’s warrant for the filling of casual vacancies, or, if
for any reason his replacement under those provisions is not possible, the magistrate
for the time being empowered to exercise powers of review under section 37 in
respect of such cause or matter may direct some other island magistrate to act
instead of the aforesaid island magistrate for the hearing and determination of such
particular cause or matter.

12 Clerk of court
(1) There shall be a clerk of court attached to each island court who shall be

appointed by the Senior Magistrate6 and who shall, subject to the general
supervision of the Senior Magistrate, be under the immediate direction and

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control of the island magistrates for the time being exercising the jurisdiction
of the island court to which he is attached.

(2) The duties of every clerk of court shall be —
(a) to keep true and accurate minutes of all proceedings in the island court

to which he is attached and to record minutes of all evidence given
therein and the judgments, convictions and orders of such island court;

(b) to fill up or cause to be filled up all summonses, warrants, orders,
convictions, recognisances, writs of execution and other documents and
to submit the same for the signature of the island magistrate for the time
being performing the duties of president of the island court concerned
or as may be otherwise prescribed or required;

(c) to issue any civil processes in accordance with the law;
(d) to attend all sittings of the island court;
(e) to receive or cause to be received all fees, fines and penalties and all

other moneys paid or deposited in respect of proceedings in the island
court and to keep or cause to be kept true and accurate accounts of the
same; and

(f) to perform such other duties as may be assigned to him by the Senior
Magistrate.

13 Execution and service of processes
(1) Any process of an island court may be executed or served by any person

authorised to do so by such court, either generally or in any particular case,
and such person shall for all purposes of such execution and connected
therewith be an officer of the island court.

(2) All police officers are hereby authorised and required to obey the warrants,
orders and directions of an island court in the exercise of its criminal
jurisdiction, and, in so far as such obedience may be authorised and required
by any Act in that behalf, of its civil jurisdiction.

14 Protection of island magistrates and officers of island courts
No island magistrate shall be liable to be sued in any civil court for any act done or
ordered to be done by him in the discharge of his judicial duty, whether or not
within the limits of his jurisdiction, provided that he, at the time, in good faith
believed himself to have jurisdiction to do or order the act complained of; and no
officer of any island court shall be liable to be sued in any civil court for the
execution of any warrant or order which he would be bound to execute if within the
jurisdiction of the court issuing the same.

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PART IV - THE LAW TO BE APPLIED IN, AND THE
PRACTICE AND PROCEDURE OF, ISLAND COURTS

15 Language
(1) The language of each island court shall be such language as the Senior

Magistrate shall from time to time specify by order.7

(2) In any proceedings in any island court in which the language spoken by any
witness or party requires to be interpreted into the language of the island
court, or vice versa, such island court may appoint any suitable persons as
interpreters.

16 Repealed by Act 8 of 1987

17 The procedure to be followed
The procedure to be followed in any cause or matter shall be that for the time being
prescribed in regulations made by the Governor-General with the approval of the
Chief Justice under section 41.

18 Sittings
(1) Each island court shall normally be held at the principal village on the island

in which it is situated but should necessity arise, or the Senior Magistrate
otherwise direct, it may be held at any other place within its jurisdiction.

(2) In construing this section, the principal village of any island shall be that
village where the headquarters of the local government of and for the island
are situated, or such other village as the Governor-General may by notice
declare in respect of any island to be the principal village thereof.

(3) Each island court shall be held at least once in every calendar month and shall
continue sitting, with such adjournments as the court shall deem necessary
until all outstanding causes and matters have been dealt with fully:

Provided, however, that, subject to the provisions of this Act, a sitting of an
island court may be held at any time the presiding island magistrate thinks fit.

(4) Both civil and criminal matters, or either one or the other, may be heard,
determined and dealt with at any sitting of any island court.

19 Adjournments
(1) Any island court may adjourn such court from day to day or to any convenient

day.

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(2) If the 3 island magistrates of which any island court is composed are not
present at the time and place appointed for the sitting of an island court, any
island magistrate or officer of the court or other person authorised in that
behalf by the island magistrate may by giving public notice, oral or written,
adjourn the sitting until such time and to such place as may have been
communicated to him by the island court, or, in the absence of any such
communication to such time and place as may be convenient; and all persons
bound to be present at the sitting so adjourned shall be equally bound to be
present at the time and place appointed by such notice.

(3) When any day appointed for the sitting of an island court falls on a Sunday or
a public holiday, the sitting shall not take place on that day and the island
magistrates shall in such case, if practicable, attend and transact the business
appointed to be heard at such sitting as aforesaid on the day (not being a
Sunday or a public holiday) next after the day appointed for such sitting.

20 Sittings to be public
All sittings of any island court shall be open to the public.

21 Issue of process
All summonses, warrants, orders, convictions and recognisances and all other
processes, whether civil or criminal, of any island court shall be issued or made
under the hand of the island magistrate for the time being performing the duties of
president thereof.

22 Mode of securing attendance of accused persons, parties and
witnesses
The attendance before an island court of accused persons and witnesses in any
criminal cause or matter, or of parties and witnesses in any civil cause or matter,
shall be secured in the manner prescribed in regulations made under section 41.

23 Examination on oath
Any person attending any island court as a witness, or summoned or brought on a
warrant before it for the purpose of giving evidence in any cause may be examined
or give evidence on oath in the form or with the ceremony that he declares binding
on his conscience.

24 Records and returns
Every island court shall keep such written records and furnish such returns as may
be required by this Act or as the Senior Magistrate may from time to time direct.

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25 A cause may be reported for transfer
An island court may, of its own motion or on the application of any person
concerned, report to a magistrate’s court the pendency of any cause or matter which
in the opinion of the island court ought to be transferred from it to any other island
court or to a magistrate’s court; and the magistrate’s court shall by order direct in
what mode and where the cause or matter shall be heard and determined.

26 Transfer of causes by a magistrate
(1) A magistrate’s court may at any time and at any stage thereof transfer any

civil cause or matter before an island court to any other island court or to
itself, and such cause may be transferred either entirely or in respect of any
part thereof or procedure required to be taken therein.

(2) The power of transfer shall be exercised by means of an order under the hand
of a magistrate and the seal of the magistrate’s court, and may apply to any
particular cause or causes, matter or matters in dependence either entirely or
in respect of any part thereof or procedure required to be taken therein, as may
be described in such order.

(3) The magistrate’s court making any order under the preceding subsection may
at all times cancel, alter, add to or amend the same.

(4) The magistrate’s court may, if it appears expedient, in the first instance cause
the contents of any such order to be telegraphed, and any such telegram shall
until receipt of the said order have the same validity and effect as if it were the
said order.

27 Effect of an order of transfer
(1) Every order of transfer shall operate as a stay of proceedings in the island

court to which it may be addressed in any cause or matter to which the order
extends or is applicable, and the process and proceedings in every such cause
or matter, and an attested copy of all entries in the books of such court relative
thereto, shall be transmitted to the court to which the same shall be transferred
and thenceforth all proceedings in the cause or matter shall be taken in such
court as if the cause or matter had been commenced therein.

(2) An order given under section 25 or section 26 shall not be subject to appeal.

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PART V - APPEALS FROM ISLAND COURTS

28 Civil appeals
Subject to the provisions of this or any other Act for the time being in force in
Tuvalu, an appeal shall lie from any judgment or decision, whether final or
otherwise, of any island court to a magistrate’s court —

(a) in exercise of its jurisdiction in divorce; or
(b) in any suit, civil cause or matter before it, in which the value of the

property, debt or damage (whether as a balance of account or not)
comprising the subject-matter of the claim exceeded $100,

but not otherwise.8

29 Criminal Appeals
(1) Subject to the provisions of this or any other Act for the time being in force in

Tuvalu, any person convicted on a trial before any island court and who has
been sentenced in respect of such conviction to —
(a) undergo any term of imprisonment without the option of a fine; or
(b) pay any fine in excess of $10; or
(c) undergo imprisonment of a term exceeding 7 days in default of the

payment of all or any part of any fine,

but not otherwise, may appeal to a magistrate’s court against his conviction or
against such sentence except when it is one fixed by law:

Provided however that no appeal shall lie in the case of any person who had
pleaded guilty and been convicted on such plea except as to the extent or
legality of the sentence.

(2) In this section, “sentence” includes any order made on conviction with
reference to the person so convicted.

30 Discretionary power of a magistrate’s court to entertain appeals
Notwithstanding anything hereinbefore contained a magistrate’s court may entertain
any appeal from an island court on any terms which it thinks just.

31 Summary dismissals of criminal appeals
(1) When a magistrate’s court has received the notice of any criminal appeal and

the record of proceedings, the magistrate holding such court shall peruse the
same.

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(2) Where an appeal is brought on the ground, either so expressed or in words to
like effect, that the decision is unreasonable or cannot be supported having
regard to the evidence, or that the sentence is excessive, and it appears to the
magistrate that the evidence is sufficient to support the conviction and that
there is no material in the circumstances of the case which would raise a
reasonable doubt whether the conviction was right or lead him to the opinion
that the sentence ought to be reduced, the appeal may, without being set down
for hearing, be summarily dismissed by order of the magistrate certifying he
has perused the record and is satisfied that the appeal has been lodged without
sufficient ground of complaint.

32 Powers of magistrate’s court in regard to criminal appeal
(1) At the hearing of any criminal appeal the magistrate’s court shall hear the

appellant, or his advocate, if he appears, and the magistrate’s court may
thereupon confirm, reverse or vary the decision of the island court, or make
such other order in the matter as to it may seem just, and may by such order
exercise any power which the island court might have exercised:

Provided that a magistrate’s court may, notwithstanding that it is of opinion
that the point raised in such appeal might be decided in favour of the
appellant, dismiss the appeal if it considers that no substantial miscarriage of
justice has actually occurred.

(2) At the hearing of any criminal appeal against sentence, a magistrate’s court
may, if it thinks that a different sentence should have been passed, quash the
sentence passed by the island court and pass such other sentence warranted in
law (whether more or less severe) in substitution therefor as it thinks ought to
have been passed.

(3) If it shall appear to a magistrate’s court on hearing any criminal appeal under
this Part that a new trial ought to be had, it shall be lawful for such court, if it
shall think fit, to order that the decision of the island court shall be set aside
and that a new trial shall be had.

33 Additional evidence in any criminal appeal
(1) In dealing with any criminal appeal under this Part, a magistrate’s court, if it

thinks additional evidence is necessary, may either take such evidence itself
or direct it to be taken by any island court.

(2) When additional evidence is taken by any island court, such island court shall
certify such evidence to the magistrate’s court concerned which shall
thereupon proceed to dispose of the appeal.

(3) Evidence taken in pursuance of this section shall be taken as if it were
evidence taken at a trial before an island court.

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34 Power of magistrate’s court in regard to civil appeal
(1) In any civil appeal under this Part a magistrate’s court shall have power to

draw inferences of fact and to give any judgment or make any order which
ought to have been made and to make such further or other order as the case
may require.

(2) For all purposes of and incidental to the hearing and determination of any
civil appeal under this Part and the amendment, execution or enforcement of
any order; judgment or decision made thereon, a magistrate’s court shall have
all the powers, authority and jurisdiction of any island court.

(3) If it shall appear to a magistrate’s court on hearing any civil appeal under this
Part, that a new trial ought to be had, it shall be lawful for such court, if it
shall think fit, to order that the decision of the island court shall be set aside
and that a new trial shall be had.

35 Further evidence at civil appeal
(1) It shall not be open, as of right, to any party to any civil appeal under this Part

to adduce new evidence in support of his original case, but a party may allege
any facts essential to the issue which have come to his knowledge after the
date of the judgment or decision from which the appeal is brought and may
adduce evidence in support of his allegations.

(2) A magistrate’s court may in any case, if it thinks fit, allow or require new
evidence to be adduced either by oral examination in court or by affidavit.

36 Neither notice of appeal nor appeal to operate as stay of execution
In the case of any civil proceedings neither notice of appeal nor an appeal shall
operate as a stay of execution or of proceedings under the judgment appealed from,
except so far as the island court which gave such judgment, or the magistrate’s court
above, may direct, and any such direction may be given with or without the
application of either party.

PART VI - REVISION OF DECISIONS OF ISLAND COURTS

37 Review by magistrate’s court of island court cases
(1) A magistrate may, either on his own motion or on the petition of any person

interested therein, call for the record of any cause before an island court and,
either without seeing such record or after seeing such record, as he may
determine, and either without hearing argument or after hearing argument as
he may determine, exercise in the case of any criminal proceedings or in the
case of any suit, civil cause or matter the powers conferred by subsections (2)

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and (3) respectively and in the exercise of such powers he shall have all the
powers, authority and jurisdiction vested in the island court which dealt with
or determined the cause under review.

(2) In the case of any criminal proceeding, a magistrate may —
(a) subject to any law fixing a minimum penalty, reduce or alter the nature

of but not increase a sentence; or
(b) subject to any law requiring a particular order to be made, set aside an

order or modify an order in such form as he thinks fit; or
(c) set aside the conviction, in which case the person convicted, if under

detention in respect of that conviction only, shall be forthwith set at
liberty, or in the case of a fine having been imposed thereon such fine,
if already paid, shall be refunded to the person fined, or if security has
been required and given, he shall be freed from such security; or

(d) set aside the conviction and convict the accused person on the evidence
of any offence of which he has not been specifically acquitted and of
which he might have been convicted by the island court which
convicted him and sentence him accordingly; or

(e) set aside the conviction and substitute a special finding to the effect that
the person convicted was guilty of the act or omission charged, but was
insane so as not to be responsible for his action at the time when he did
the act or made the omission, and order such person to be kept in
custody as a criminal lunatic in such place and manner as the Senior
Magistrate may direct, and such special finding shall be forthwith
reported for the order of the Governor-General who may order the
person convicted to be confined in a mental health wing, prison or other
suitable place of safe custody; or

(f) set aside the conviction and order a new trial before the island court
which made the conviction in question or any other island court; or

(g) order further evidence to be taken either generally or on some particular
point by the island court which passed the sentence or by any other
island court, and order in the meantime any person who shall have been
convicted to be liberated on bail or on his own recognisance; and

(h) make such order as justice may require and give all necessary and
consequential directions:

Provided always that when a person convicted shall have appealed against
such conviction or any sentence imposed in respect thereof under the
provisions of this Act relating to such appeals, a magistrate shall not exercise
the powers conferred by this subsection:

And provided further that nothing in this subsection shall be deemed to
authorise the conversion of a finding of acquittal into one of conviction.

(3) In the case of any suit, civil cause or matter a magistrate may —

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(a) set aside any judgment, decision or order made by the island court and
substitute any judgment or order which ought to have been made;

(b) direct the island court which gave the judgment or direction or made
the order, or any other island 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 and order a retrial before the island court which
heard and determined the proceedings in question or any other island
court; or

(d) make any other order as justice may require and give all necessary and
consequential directions:

Provided always that when a party shall have appealed against any judgment
or order under the provisions of this Act relating to appeals, a magistrate shall
not exercise the powers conferred by this subsection.

(4) The powers conferred by this section shall not be exercised in respect of any
case after the expiration of 12 months from the date of the passing of the
sentence or the giving of judgment, order or decision terminating the
proceedings in such case in the island court, and in respect of which the
magistrate in question, or any predecessor of his, shall not up to then have
taken any action.

(5) For the purpose of facilitating the exercise of the powers conferred by this
section, the Senior Magistrate may, by order under his hand,9 direct that until
such time as he shall otherwise order the clerk of any island court specified
therein shall, at the end of each and every month, cause to be sent to the Clerk
of the Senior Magistrate’s Court true and complete copies of a list of all
causes brought before such island court during that month.

(6) In the case of criminal proceedings there shall be set out in such list the
names, sex and age of each defendant, the offence with which he was charged,
his plea thereto, and, if convicted, the date of the conviction and the sentence
or order in full.

(7) In the case of any suit, civil cause or matter there shall be set out in such list
the names of the parties, the nature and subject-matter of the claim and brief
details of the judgment of other order made.

PART VII - MISCELLANEOUS

38 Concurrent jurisdiction of judges and magistrates
No jurisdiction conferred on any island court by or under this Act shall in any way
affect the jurisdiction conferred on the High Court, or on any magistrate’s court, but

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judges and magistrates shall have in all causes and matters, civil and criminal, an
original jurisdiction concurrent with that of the several island courts:

Provided that no person shall be liable to be punished twice for the same offence.

39 Fees and costs
The fees and costs for the time being prescribed to be paid in connection with any
criminal or civil cause or matter in island courts may be demanded and received by
the clerks thereof or by other persons appointed to receive such fees or costs:

Provided that, in the absence of the clerk from any island court or in the event of
there being no such clerk or other person appointed to receive such fees and costs in
any such island court, the island magistrate who is for the time being presiding over
such island court may demand and receive such fees and costs.

40 Payment of fees and costs
All fees and costs payable under or by virtue of this Act shall in the first instance be
paid by the party applying for the summons, warrant, or other process or document
in respect whereof the same are payable:

Provided that no fees shall be payable by any public officer or public department in
any case instituted by any public officer when acting in his official capacity or in
any case in which the island court endorses on the plaint, information or complaint,
as the case may be, that it is a fit one for remission of fees on account of the poverty
of the party or for any sufficient reason; and in every such case such fees and costs
shall, in the discretion of the island court, be recoverable from the other party, if the
decision be given against him.

41 Regulations
The Governor-General may, with the approval of the Chief Justice, make such
regulations as may seem to him expedient for the carrying into effect of any of the
objects, intentions, and provisions of this Act and, without derogation from the
generality of the foregoing or of any other provision of this Act relating to the
making of regulations, for all or any of the following purposes —

(a) for regulating the procedure and practice to be followed in any cause or
matter;

(b) for regulating forms to be used and all matters connected therewith;
(c) for regulating the procedure and practice to be followed in any appeal

under Part V;
(d) for providing the form and manner in which any notice of appeal under

Part V is to be given;

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(e) for prescribing the time within which any notice of appeal under Part V
is to be given and for providing for any extension thereof;

(f) for providing for the giving of security and for the payment of fees and
costs in any civil appeal under Part V;

(g) for providing for the release from custody of any appellant pending the
determination of any criminal appeal under Part V and for the giving of
security by such appellant;

(h) for prescribing any fee, matter or thing which is required, or appears to
be expedient, to be prescribed under or in connection with the
provisions of Part V;

(i) for regulating the receipt of money paid into an island court or received
or recovered under or by virtue of any process of execution or distress;

(j) for regulating the payment out of an island court of any money to any
person entitled thereto;

(k) for prescribing books and forms of account to be kept or used in island
courts;

(l) for prescribing fees, costs, amounts for service and execution of process
which may be received by clerks of island courts and others in
connection with the practice and procedure in island courts;

(m) for prescribing for the acceptance, retention and disposal of fees and
costs;

(n) for prescribing provision for the payment of any sum, or sums, of
money to persons required to attend any island court as witnesses for
defraying their reasonable expenses, and allowing them reasonable
compensation for their trouble and loss of time involved in any such
attendance;

(o) for prescribing rules of evidence to be observed in proceedings before
island courts;

(p) for providing for the appointment and terms and conditions of service
of probation officers and for their powers, duties and functions;

(q) for prescribing for the administration of any punishment ordered under
section 8(8).

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SCHEDULE 1

(Section 5)

JURISDICTION IN CIVIL CAUSES AND MATTERS

1. Each island court shall have jurisdiction to entertain, hear, try, determine and
otherwise deal with —
(a) matrimonial proceedings in accordance with section 5 of the

Matrimonial Proceedings Act;10
(b) any personal suit, whether arising from contract or from tort, or both, in

which the defendant is ordinarily resident within the jurisdiction of
such court or in which the cause of action arose in such jurisdiction and
where the value of the property, debt or damage claimed (whether as a
balance of account or otherwise) is under $250;11

(c) any application for an order under the Maintenance (Miscellaneous
Provisions) Act12 subject to sections 4 and 7 of that Act;

(d) any application for an order under the Custody of Children Act13
subject to section 5 of that Act.

2. For the avoidance of possible doubt it is hereby declared that no island court
shall have jurisdiction to try any suit, civil cause or matter in respect of which
original jurisdiction to hear and determine the same is conferred on any lands
court by the provisions of the Native Lands Act.

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SCHEDULE 2

(Section 5)

JURISDICTION IN CRIMINAL CAUSES AND MATTERS14



Any island court shall, subject to the limitations imposed by this Act, have jurisdiction to
hear, try and determine in accordance with the prescribed procedure any criminal
proceedings arising in or from a charge made before such court that any person has
committed, or is suspected of committing, within the jurisdiction of such court any offence
the maximum punishment for which is a fine of $250 and 6 months’ imprisonment, or any
offence under the provision of the enactments set forth below, that is to say —

Act Section or regulation in respect of which jurisdiction
is conferred

(i) Any Act in which
such jurisdiction is
expressly conferred
upon an island court;



(ii) Penal Code;15 (i) Sections 60, 82 and 83;

(ii) Section 115 where the court or the proceeding in
question is or is before an island court but not otherwise;

(iii) Section 117;

(iv) Section 133;

(v) Section 167 (provided however that no island court
shall exercise the power conferred by the proviso to the
section);

(vi) Sections 169 to 174 inclusive;

(vii) Sections 181, 182 and 183;

(viii) Sections 223, 237, 238 and 240;

(ix) Sections 268, 269 and 270;

(x) Section 285;

(xi) Sections 254(1), 272, 273, 274, 275, 306, 307 and
319(1) where the thing stolen, cut, broken, severed,
rooted up, ripped, damaged, destroyed, received or
thrown down, as the case may be, is of a value not

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exceeding $50;

(xii) Section 318;

(xiii) Sections 322 and 323:

Provided that in no case shall an island court pass upon
any person convicted of an offence by it in exercise of
the jurisdiction conferred by this Schedule a sentence in
respect of that offence which is not authorised by section
6 or, where the person convicted is a young offender,
section 8 of this Act;

(iii) Falekaupule Act; Any offence created by any bye-law made under Part VI
of the Falekaupule Act;16



(iv ) Marriage Act;17 Section 12(6);



(v) Dogs Act18 Section 5, 6, 11, 14 and 22;



(vi) Traffic Act;19 Section 14, 22, 23, 24, 25 and 30;



(vii) Public Order Act20 Section 15, 16, 25, 28, 29,and 34



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ENDNOTES


1 1990 Revised Edition, Cap. 3 - Acts 10 of 1965, 10 of 1967, 2 of 1969, 8 of 1971, 9 of 1971, 3 of

1972, 9 of 1969, 13 of 1972, 1 of 1982, 8 of 1987, 1 of 1988, 4 of 1989; LNs. 63/1968, 40/1969,
43/1972, 31/1973, 12/1974, 41/1975

Amended by Act 4 of 1996, commencement 30 August 1996, (by Act 4 of 2009)
Amended by Act 4 of 2009, commencement 6 July 2009
2 Act in operation and Island Courts established in - Funafuti (LNs 41/1967 and 7/1971); Nanumea,

Nanumanga, Niutao, Nui, Nukufetau, Nukulaelae, Vaitupu (LNs 70/1967 and 5/1968); Niulakita
(LN 13/1977, the court for Niutao is to be the court for Niulakita)

3 Amended by Act 4 of 2009
4 Cap. 46.20
5 Amended by Act 4 of 1996
6 G.N. 33/1979 —
The Senior Magistrate has appointed as Clerk to each Island Court in Tuvalu the Failautusi ote

Kaupule respectively appointed to the Kaupule having authority over the area of jurisdiction of
such Island Court

7 By GN 31/1979 —

The Senior Magistrate has specified the Tuvalu language as the language of each
Island Court in Tuvalu:

“Provided that —

(a) On the island of Nui, the Gilbertese language may be used if the court and
parties prefer;

(b) English may be used in any case in which a person who does not speak
Tuvaluan is before the Court if the members of the court are familiar with
English;

(c) Returns of court cases furnished under the provisions of section 37 of the said
Act shall be in English;

(d) The record of any case called for by the Magistrate or Senior Magistrate or
produced for purposes of review or appeal shall be translated into English
by the Clerk to the respective Island Court.”

8 Amended by Act 4 of 2009
9 By GN 32/1979 —

“1. In exercise of the powers conferred by section 37(5) the Senior Magistrate has directed that
until such time as he shall otherwise order the Clerk of every Island Court in Tuvalu shall at
the end of each and every month cause to be sent to the Registrar of the High Court,
Funafuti, true and complete copies of a list of all cases brought before the Island Court of
which he is Clerk during that month.

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2. In accordance with section 37(6) in the case of criminal proceedings there shall be set out in

such list the names, sex and age of each defendant, the offence with which he was charged,
his plea thereto and, if convicted, the date of the conviction and the sentence or order in full.
In the case of any suit, civil cause or matter there shall be set out in such list, in accordance
with the provisions of section 37(7), the names of the parties, the nature and subject-matter
of the claim and brief details of the judgment or other order made.”

10 Cap. 17.30
11 Amended by Act 4 of 2009
12 Cap. 17.20
13 Cap. 17.15
14 Amended by Act 4 of 2009
15 Cap. 10.20
16 reference changed in exercise of law revision powers and Falekaupule Act
17 Cap. 17.25
18 Cap. 44.15
19 Cap. 50.10
20 Cap. 20.36
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