Teaitua v Attorney-General [2001] KICA 10; Land Appeal 08 of 2000 (5 April 2001)

IN THE KIRIBATI COURT OF APPEAL
LAND JURISDICTION
HELD AT BETIO, KIRIBATI

Land Appeal No. 8 of 2000

BETWEEN:

NEI MEERIBWA TEAITUA
(for issues of Tebau, Kanonga & Roroko)
Appellant

AND:

ATTORNEY-GENERAL
(in respect of Chief Lands Officer)
Respondent

Before: Casey JA
Bisson JA
Tompkins JA

Counsel: Mr B Berina for the appellant
Mr T Tabane for the respondent

Date of Hearing: 3 April 2001
Date of Judgment: 5 April 2001

JUDGMENT OF THE COURT

[1] This appeal against the judgment of the High Court of 3 August 2000 relates to the question of ownership of reclaimed land at Temwaiku occupied by many people, which the Single Magistrate had ruled on 23 September 1997 belonged to the Government in Case 155/97. It was claimed as theirs by issues of Kanonga, Tebau and Roroko. When it was first called on 10 April 1997 the Magistrate noted that Bateriki Bare, Tominiko Kairaku Bwebwentaratai Benson and Teraku appeared for the issue of Kanonga; Naetai and Kataueana for the issue of Tebau; and Nei Tibou for the issue of Roroko. The matter was adjourned until the hearing of 10 July when it was noted that only Mr Benson appeared for the plaintiffs. It can be assumed that he was left by those appearing at the adjourned hearing to speak on their behalf also.

[2] There was no appeal against the decision in Case 155/97 within the time allowed, but others of the issues of Kanonga, Tebau and Roroko took fresh proceedings on substantially the same grounds in Case 19/98 which was dismissed on 3 February 1998. It was not until August 1999, nearly two years after the decision in Case 155/97, that the present appellant sought leave to appeal against it. She was not one of those directly involved in that case, but as one of the issues of the named families she would have standing to appeal. The High Court extended the time for her to do so, and at the hearing of the appeal the substantive point, (which also forms the real issue in this Court), was whether the Magistrate was right in accepting that Mr Benson (a layman) had authority to represent all the issues of Tebau, Kanonga and Roroko. The High Court held that a court has no more obligation when the parties are represented by a layman, than it has when the parties are represented by a lawyer, to go behind what it is told about whom the layman is representing; and that there was no obligation to satisfy itself that litigants are really representatives of all those who have an interest in the proceedings. It concluded that to do so would be impracticable and is not required by law.

[3] In this Court Mr Berina identified the question of law for our determination as:

"Was the High Court right in holding that the Magistrate was entitled to satisfy himself that the claimants had the authority of the occupiers to act on their behalf, without ascertaining in fact that they had such authority?"

As in the High Court, Mr Berina was in some difficulty in suggesting any practicable way of ascertaining the existence of such authority, especially in this case where the High Court observed that there may be hundreds of persons interested. What can be said with certainty is that Mr Benson and the others who attended the hearing would have had the same interest as all those other persons in asserting their ownership of the land they occupied, against that of the Government seeking to claim it. Mr Berina conceded that the Court could accept the assurance of a lawyer about whom he or she represents. In a case such as this, where there is a clear identity of interest among all possible claimants, it is difficult to see why it cannot equally accept the assurance of a seemingly responsible lay representative who is apparently well aware of the issues involved and committed to the case, as was the situation with Mr Benson.

[4] It is recognised in land cases that there can be lay representation: see s29 of the Magistrates' Courts Ordinance (Cap 52) requiring parties or their representatives to be present throughout. It is well settled and only plain common-sense to have a representative speaking for all when there are so many persons involved that the issues could never be finally resolved or, as one of the older cases put it, "you could never come to justice"- see Duke of Bedford v Ellis [1900-03] All ER Rep 694 at 697. Section 28 of the Ordinance contains a procedure for appointment of a representative in land cases where a party fails to appear, being a relative "who may reasonably be expected to have good knowledge of the history of the land under dispute". The words quoted provide a guide to the qualities the Court would look for in deciding whether to accept the assurance of a lay person that he or she represents others having a common interest in litigation for their benefit. As noted above, Mr Benson appeared to fulfil these requirements.

[5] For these reasons we are satisfied that the High Court did not err in holding that the Magistrate was entitled to accept Mr Benson's assurance that he represented all those involved and the answer to the question of law posed by Mr Berina is "Yes". There was a further matter raised in his notice of appeal criticising the High Court's comments about registration and ownership. We see no substance in this point, which was not pressed in his submissions.

Result

The appeal is dismissed.

Casey JA
Bisson JA
Tompkin's JA