Tekee v Kakiaba [2006] KICA 21; Land Appeal 08 of 2006 (26 July 2006)

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

Land Appeal 8 of 2006

BETWEEN:

ISSUES OF ATANIMOA TEKEE
TENNA TEKEE
Appellants

AND:

ISSUES OF RIITA KAKIABA
TIBOU IOKAARA
Respondents

Before: Hardie Boys JA
Tompkins JA
Fisher JA

Counsel for appellants: Ms Taoing Taoaba
Counsel for respondents: Ms Fleur Hamilton

Date of Hearing: 25 July 2006
Date of Judgment: 26 July 2006

JUDGMENT OF THE COURT

Introduction

1. This is an appeal from a decision of the High Court sitting in its land jurisdiction on 5 May 2006 (High Court Land Review No. 15 of 2005) dismissing an application to review a decision of the Single Magistrate (CN75/04). In deciding the appeal we have had the benefit of all necessary translations including those of the Court staff and Ahling Onorio.

Background

2. The appellants are brother and sister. The subject land Tetabo 815u at Betio was originally registered in their names pursuant to the Magistrates’ Court decision in CN 84/75.

3. In 1996, and then again in 1998, persons who are not parties to the present proceedings unsuccessfully challenged the appellants’ title in the Magistrates’ Court (CN/96 and CN A74/98). Appeals against those decisions were not pursued in one case and were decided against the challenging parties in the other.

4. In 2004 it was the turn of the respondents to challenge the appellants’ title (Magistrates’ Court proceedings CN 75/04). Summonses were issued for the appellants to attend the proposed hearing on 18 March 2004. Neither attended despite an affidavit of service on Tenna. The case was adjourned to enable service on her brother, Atanimoa.

5. When the case resumed on 28 March 2004 there was still no appearance by either appellant despite some suggestion in the record that by that stage they had both been served. The minute of the hearing records that having discussed their absence the Magistrate immediately gave judgment for the respondents. The record does not include any evidence or reasons for the decision. The effect of the decision was to add the respondents as co-owners along with the appellants.

6. The respondents pressed on to secure sole ownership. A similar process followed. In CN 86/04 the respondents’ claim came on for hearing on 14 June 2004 without appearance of either appellant despite evidence that they had been served. Nor did they appear on 18 June 2004 or 18 October 2004 when adjournments were made for that purpose. The case proceeded on 18 October in their absence.

7. At the hearing on 18 October 2004 the respondents called evidence that they had been absent on another island when the appellants had secured registered title. Their description of the relevant line of descent persuaded the Magistrate that the appellants should be removed from the title, leaving the respondents as sole owners.

8. The appellants applied for a review of the decisions given in CN 75/04 and CN 86/04 together with an associated decision CN 123/04 purporting to adjust the interests among the members of the respondents’ family.

9. In an affidavit in support Tenna said that she had not been able to attend the hearings because she was on North Tarawa and in addition she had thought that the case could not proceed as it had been dealt with before by the High Court. In this she was referring to the unsuccessful challenges to the appellants’ title in 1996 and 1998. In his affidavit Atanimoa claimed that the appellants had not been informed about the proceedings brought by the respondents.

10. In a terse judgment the High Court found that the appellants had been given adequate notice of the Magistrates’ Court proceedings. Having failed to avail themselves of the opportunity to appear they could not complain about the decision. In particular the Court noted that:

"Ms Taoaba argued that before [the Magistrate] came to a decision he should have had evidence of fraud as the decision was affecting her clients’ titles which were indefeasible. If so her clients or someone on their behalf should have appeared to put the point: it is too late now."

The Appeal

11. Mrs Taoaba submitted that the High Court was not justified in finding that the appellants had been served with the proceedings in the Magistrates’ Court. We are unable to accept this. Notwithstanding Atanimoa’s evidence to the contrary, there was material before the High Court upon which it could find that they had been adequately served.

12. Mrs Taoaba then submitted that the effect of rules 28 and 29 of the Magistrates Court Rules was that the Magistrate was not entitled to proceed in the absence of the appellants or a knowledgable relative appointed to represent them.

13. It is true that Taberu v Redfern [2002] KICA 1; Land Appeal 2/2001 (12 August 2002) suggests that attendance or appointment under R 28 is mandatory. On the other hand in Erimikriki v Tekabu [2003] KICA 7; Land Appeal 04/2003 (16 August 2003) it was said that the matter is discretionary.

14. To the extent that there is a conflict between Taberu on the one hand and Erimikriki on the other we prefer the latter. Rule 28 merely provides that in the absence of a party the Court "may" appoint a qualifying relative. "May" clearly indicates a discretion. Rule 29 requires that a party or, in his absence, his representative, must be present but this appears to deal only with the situation in which there is either an available party or an appointed representative. It does not address a situation in which the party is not present and the Court has exercised its discretion against the appointment of a representative. In that situation Rule 29 could have no application. To hold otherwise would mean that a party could avoid an adverse decision indefinitely by the simple expedient of ensuring that neither he, nor a qualifying relative, were available to attend.

15. For that reason we accept that in principle the Magistrate was entitled to proceed in the absence of the appellants in this case.

16. What does clearly emerge from rules 28 and 29, however, is that the Magistrates’ Court must do its best to ensure that no case will proceed without the presence of all affected parties or their qualifying representatives. It could only be in extreme cases that a court would be justified in proceeding without either. And if such an extreme case arose, one would expect the court to go to great lengths to ensure that no decision is made against the interests of the absent party without a solid foundation in the evidence.

17. It is clear law that one Magistrate may not override the decision of another in the absence of fraud. In this case the Magistrate in CN 75/04 and CN 86/04 appears to have assumed that the absence of any active opposition from the appellants justified a particularly liberal approach to the respondents’ claims. In CN 75/04 judgment was given for the respondents without any evidence at all, certainly none revealed by the court’s record of the proceedings. In CN 86/04 the evidence is confined to facts on which the claim of the respondents was based. There was no evidence of fraud on the part of the appellants or their predecessors.

18. It follows that in both CN 75/04 and CN 86/04, in purporting to override the decision already given in favour of the appellants in CN 84/75, the Magistrate was acting without jurisdiction. The High Court’s error of law was failure to apply the principle that one Magistrate may not override the decision of another in the absence of fraud.

Result

19. The appeal is allowed. The decisions given in CN 75/04 and CN 86/04 are quashed. As counsel did not address us with respect to the decision in CN 123/04 we make no order in that respect.

20. The respondents must pay costs to the appellants as agreed or fixed by the Registrar following taxation.

Hardie Boys JA
Tompkins JA
Fisher JA