Keangimawa v Taitai [2006] KICA 20; Land Appeal 07 of 2006 (26 July 2006)

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

Land Appeal No 7 of 2006

BETWEEN

TEMAROITI KEANGIMAWA
Appellants

AND

MAREBU TAITAI
Respondents

Before: Hardie Boys JA
Tompkins JA
Fisher JA

Counsel: Aomoro Amten for appellant
Karotu Tiba for respondent

Date of Hearing: 24 July 2006
Date of Judgment: 26 July 2006

JUDGMENT OF THE COURT

Introduction

[1] The appellant applied for an adjournment of this appeal because of difficulties relating to the amount required to be paid as security. That application was refused.

[2] According to the court records, the appellant had failed to pay the security due. However, counsel for the appellant advised that he been instructed by the appellant that he had paid the amount due to a person on the island of Nonouti where he lives. If this be so, the amount has not been traced. Counsel for the appellant was not able to attempt to trace the payment because of difficulties of communicating with the island. In these circumstances, the court decided to hear the appeal.

[3] The judgment appealed from was delivered on 17 January 2002. The notice of appeal was filed on 5 July 2006, after the time for appealing had expired. The appellant applied for leave to appeal out of time, relying on affidavits filed in support, explaining the delay. This application was reserved to be considered after the hearing of the substantive appeal.

Judgment in the High Court

[4] In delivering its judgment, the High Court referred to the contention of the appellant that the application in the Land Court fixing the relevant boundary should be heard again because the appellant did not have time to bring her father from Tarawa to Nonouti. The High Court did not accept that submission, observing that there was plenty of time, and that it was the responsibility of the parties to have their witnesses ready for the hearing. The magistrates were justified in proceeding to make their determination.

Submissions for the appellant

[5] Counsel for the appellant submitted that the High Court was in error in confirming the decision of the magistrates having regard to the evidence submitted and in proceeding to make the determination when it was apparent that an adjournment was necessary.

Conclusion

[6] Section 10 (1) (b) provides that an appeal lies to this court on any ground of appeal which involves a question of law only from any decision of the High Court in the exercise of its appellate jurisdiction. In the present case, the High Court was sitting on appeal from the magistrates’ court. Thus this court has jurisdiction to determine the appeal only if it involves a question of law.

[7] The grounds advanced in support of the appeal do not involve any questions of law. They are questions of fact. This court does not have jurisdiction to determine the appeal.

Result

[8] Leave to appeal out of time is granted. The appeal is dismissed. There will be an order for costs in favour of the respondent in an amount to be agreed or taxed.

Hardie Boys JA
Tompkins JA
Fisher JA