Erimiriki v Tekabu [2003] KICA 7; Land Appeal 04 of 2003 (16 August 2003)

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

Land Appeal No. 4 of 2003

BETWEEN:

TEAOBITI ERIMIRIKI
Appellant

AND:

TITIROU TEKABU
Respondent

Coram: Hardie Boys JA Tompkins JA Penlington JA

Counsel: John O'Sullivan for Appellant
Banuera Berinafor Respondent

Date of hearing: 13 August 2003
Date of judgment: 16 August 2003

JUDGMENT OF THE COURT

This is an application for leave to appeal out of time against a High Court judgment delivered on 31 May 2002. The application for leave was filed more than a year later, on 16 June 2003.

In the High Court, Teaobiti Erimiriki had appealed against a decision of a Single Magistrate hearing an application by Titirou Tekabu for a boundary determination in the Lands Court. The application had originally been brought on for hearing on 18 December 2000, when the applicant, the present respondent, with counsel, was ready to proceed. However the appellant who was the respondent in that proceeding, appeared in person and asked for an adjournment: "My lawyer told me that he wasn't ready and that he would get in touch with the applicant". The adjournment was granted to 26 April 2001, but the Magistrate warned "...the respondent's lawyer must be prepared. The Court shall proceed irrespective of whether he is ready or not." However, on 26 April, on the application of the appellant, the matter was further adjourned, by consent, to 30 April, in order that the appellant could complete registration of her title. For although the application was for a boundary determination, at the heart of the matter was a dispute as to whether the appellant's house was on her own land or on the respondent's land.

On 30 April the appellant again appeared in person, and informed the Court that the registration had been effected, but the Minute was not available. And so the matter was adjourned once again, to 4 May 2001, the Magistrate stating that the appellant must then produce the Minutes, and if she did not, the Court would proceed to hear the applicant. The appellant did not appear on 4 May. Instead, she went to see the President to endeavour to enlist his help with the case, and had taken the documents to him. She has deposed that she made the appointment before the hearing was fixed for that day, (although she had not told the Magistrate that) and understandably did not feel that she could cancel her appointment with him. So instead of attending the hearing herself, she sent her 26 year old son to explain.

When he was informed of this, the Magistrate announced that he would proceed to hear the applicant's case, and on establishing who the son was, appointed him to represent his mother. He did this pursuant to rule 28 of the Magistrates Court Rules which provides:

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 each party and may thereupon proceed to hear and determine the matter in issue.

This very sensible provision is designed to ensure that an application can be disposed of without injustice to a respondent who fails to attend without good excuse. But to ensure there is no injustice, the relative to be appointed must reasonably be expected to know enough about the land to be an effective representative.

Unfortunately, the son was not an effective representative. It is obvious from the record that he knew very little about the matter, so little in fact that when the Magistrate delivered a reserved judgment on 18 May 2001 he said "The respondent's title is too feeble to counter the evidence raised from the plaintiff's title".

The appellant filed an appeal with the High Court on 26 November 2001. At the hearing on 31 May 2002 attention seems to have focused on whether the Magistrate made an error of law in accepting and giving effect to the applicant's evidence. The Chief Justice rightly observed that if there were an error, it was an error of fact, and he dismissed the appeal on that basis. During argument, counsel who was then acting for the appellant had asked the Chief Justice to send the case back to the Magistrate for re-trial, so that her client could be heard, but the Chief Justice declined to do that: she had had her chance, he said, and it would be unfair to the applicant, who was entitled to finality.

A week later, the appellant and her daughter-in-law went to see the lawyer, who, she says, told her there was nothing else she could do.

Another week later the daughter-in-law and her husband went to see a different lawyer, who advised them to seek a boundary determination, but did not mention the possibility of a further appeal. In December 2002 the daughter-in-law saw the clerk to the Magistrates Court and he informed her that they could appeal. She went back to the lawyer, who advised that an appeal would be hopeless and expensive, and repeated his advice about a boundary determination. That course was duly followed, but was unsuccessful, the Magistrate on 7 April 2003 ruling that the matter had already been determined by the High Court. Thereupon she went back to the lawyer, who referred her to Mr O'Sullivan, who duly brought this present appeal.

This is not a case where the appellant had slept on her rights. She took reasonable steps to obtain advice and acted upon it, as obviously an unsophisticated lady would. The advice was erroneous. But we do not think that in this society litigants should be visited with the failure of their lawyers to advise the proper course of action. Had an appeal been filed in time, it would no doubt have been heard in this Court's sitting last August. The late filing has resulted in a further year's delay. But we doubt that the respondent has been especially prejudiced, and because we think the appeal has merit, we grant leave to appeal out of time.

In our view, the key issue in the case is whether the Magistrate ought to have proceeded with the hearing in the absence of the appellant and with the appellant's son acting as her representative. We do not consider that he was right to have done so.

The granting of an adjournment is a matter for the exercise of judicial discretion. In the words of the New Zealand Court of Appeal in West v Martin and West [2000] NZCA 177, "The court is required to conduct a balancing exercise, with the ultimate issue being the need to do justice as between the parties". In the present case, a balance had to be struck between the right of the applicant not to have the proceedings drawn out unnecessarily and the right of the appellant to put her case. The matter had been before the Court for five months and had been adjourned twice because the appellant, for one reason or another, was not ready. The applicant certainly had a strong case for having the matter disposed of that day. On the other hand, the appellant was asserting a contrary claim, for which she had some documentary support - we are not in a position to assess the strength of it - and the clash of appointments would obviously create a dilemma for a simple woman such as she.

There is this further factor, which leads us to the conclusion that the adjournment ought to have been granted. That is the inadequacy of the son to represent his mother's interests.

Rule 28 of the Magistrates Court Rules is so worded that the appointment of a person to represent an absent respondent is discretionary, but in view of the purpose of the appointment, to ensure justice is done, it would not be often that a Magistrate would be justified in proceeding without any representation at all. Having decided to make an appointment, it is clear that the Magistrate must ensure that the proposed appointee is indeed capable of adequately representing the interests of the respondent. Otherwise justice cannot be done. A person, and his or her family, could well be deprived of their property.

Here, the son was clearly sent only to explain his mother's absence, and not to represent her. He told the Court that he did not have with him the crucial document. The Magistrate made no inquiry as to his knowledge of the circumstances. He simply appointed him. And he allowed the case to proceed when the son plainly was floundering, and putting up a "feeble" case. The son did not object or ask for an adjournment but that is understandable enough. That should not have affected the Magistrate's control over the proceedings.

In these circumstances, we consider that the Magistrate made an error of law in not ascertaining whether the son was competent to represent his mother's interests, and then in not adjourning the case when it became apparent that he was not. A further short delay could not have been prejudicial or unfair to the applicant.

The appellant's case in this Court was put rather differently from the way it appears to have been argued in the High Court, where the Court seems to have been concerned only with the correctness of the Magistrate's decision. But as we have explained, it has been made clear to us that the real issue is more fundamental.

For the reasons given, we allow the appeal, quash the decision of the Magistrates Court given on 4 May 2001, and direct a fresh hearing. But we should emphasise that, after all that has happened, the Magistrates Court might well be justified in refusing any further adjournments.

Hardie Boys JA
Tompkins JA
Penlington JA