Nokite v Ritati [1997] KICA 5; Land Appeal 08 of 1996 (25 March 1997)

IN THE COURT OF APPEAL OF KIRIBATI

LAND JURISDICTION

LAND APPEAL NO. 8 OF 1996

BETWEEN

ARIERA NOKITE
Appellant

AND

ATOTI RITIATI
Respondent

Date of Hearing: 20 March 1997
Delivery of Judgment: 25 March 1997

Mr B Berina for the Appellant
Mr T Teiwaki for the Respondent

JUDGMENT OF THE COURT
(Gibbs V.P., Connolly and Ryan JJ.A)

On 4 August 1993 the South Tarawa Lands Court apparently at the request of the parties made a subdivision of Nawerewere 650/u/i into four shares. The land in question is a rectangular block running from the lagoon to the main road.

The width of the land is 14m and the division was made by dividing the 14m boundary into four, resulting in four blocks 3.5m in width running from the lagoon end to the road. The appellant's house is already located at the lagoon end and appears to extend across the 14m frontage to the lagoon so as to occupy at least to some extent a part of each of the subdivisions.

The shares are described by the magistrates simply as Atoti R 3.5 metres, Ariera N (the appellant) 3.5 metres, Kaititi A 3.5 metres and Abiteti A 3.5 metres. The record of the case (No. 342/93) states the appellant was furious and left. The appellant was absent when the magistrates confirmed their decision on 8 December 1993 although summoned to attend.

On 28 March 1994 the appellant sought leave to appeal from case 342/93.

The case came before the High Court on 11 June 1996, the Court being constituted by a Commissioner and two Magistrates. The Court reserved judgment.

On 8 July I 996 judgment was given. It would appear that the case was treated as one in which leave to appeal had been granted for the merits of the case were discussed and the appeal was dismissed. The reasons of the Court are set out as follows:-

"The appellant now advances before us several reasons why such a division would be unfair to her and canvasses more equitable means of division.

Well she must accept that it is far too late for that. The merits of competing solutions to a problem (and this is quite a difficult problem, we accept) are matters of fact to be decided, in land causes and matters, by a court of first instance which we are not. If the appellant chooses to walk out of such proceedings and decline to attend further hearings she must bear the consequences. In the circumstances the decision of the magistrates is not one that merits our interference"

The powers of the High Court in determining appeals in land causes are those which it would have if constituted by the Chief Justice sitting alone: Magistrates’ Courts Act s.77. It is, of course, the function of the High Court, in supervising proceedings before any subordinate court to make such orders as it may consider appropriate for the due administration of justice: Constitution s.89(1). The appellant may have been unwise to leave in a fury on 4 August 1993 and to stay away on 12 December 1993 but this does not give any greater credibility to the decision, which the High Court noted, had already been made on 4 August.

The decision complained of is not one of a number of competing solutions to a difficult problem. It is in truth no solution at all, bearing in mind that the land in question was purchased by four cousins to live on it, building four houses.

It appears that the appellant is at odds with the other cousins. We do not speculate as to what advantage the decision might give to them. However any solution which does not give the appellant title to the land occupied by the existing house must be to their advantage in the short term at least for they can force the appellant off 3 of the 4 blocks. This is not to suggest that the appellant must have such title if a workable subdivision is to be achieved, merely that the subdivision must be realistic.

Be that as it may, the task of the Magistrates' Court was to divide the land into four blocks each capable of being occupied by a dwelling and each having access to the main road and the lagoon by right of way if necessary. No attempt was made to do so. It was, with respect, inappropriate to describe the decision as not meriting the interference of the High Court. The contrary is the case. The appeal should be allowed and the order of the High Court set aside. In lieu thereof order that the matter be remitted to the South Tarawa Magistrates' Court to subdivide the land in question into four blocks capable of being occupied.