Erimereki v Tekabu [2007] KICA 2; Land Appeal 10 of 2007 (30 July 2007)

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

Land Appeal No 10 of 2007

BETWEEN

TEAOBITI ERIMEREKI
Appellant

AND:

TITIROU TEKABU
First Respondent

AND:

TOOTI KATARAKE
Second Respondent

Before: Hardie Boys JA
Tompkins JA
Paterson JA

Counsel: Karotu Tiba for appellant
Banuera Berina for respondent

Date of Hearing: 27 July 2007
Date of Judgment: 30 July 2007

JUDGMENT OF THE COURT

Introduction

[1]. On 4 May 2007 the Chief Justice dismissed an appeal against the decision of the Single Magistrate of 12 April 2006. From that decision the appellant has appealed to this court.

[2]. On 26 July 2007 the appellant filed a motion for an order granting leave to appeal out of time with an affidavit in support. On the same day she filed a motion for an order that her payment of the expenses of the appeal be waived with an affidavit in support. It transpired that security for costs were fixed at $500 and she lacked the resources to pay this amount. The court suggested that the appeal could be adjourned to the next sitting of the court to enable her to find the amount required to meet the order for security. Mr Berina then indicated that he would prefer that payment of the security be waived, rather than the appeal be adjourned. Accordingly, we order that leave be granted to appeal out of time and that payment of the security be waived.

The judgment in the High Court

[3]. The court said that the only ground of appeal that gave some concern is the appellant’s complaint that the Single Magistrate relied on a pit list that was not before the court. The hearing was adjourned to enable counsel for the appellant to consider the pit list. When the hearing resumed, the court heard further submissions then delivered its decision. It concluded that the pit list was before the Single Magistrate during the hearing, that it was open to counsel to cross-examine on it and that the Single Magistrate could properly rely on it. Accordingly the appeal was dismissed.

The facts

[4]. The High Court commenced its judgment with the observation that the facts are complex. Unfortunately, it made no attempt in its judgment to set out those facts. So it has been necessary for this court to spend considerable time ascertaining them.

[5]. The story begins with an appeal to the High Court from a decision of the Magistrates’ Court in case 236/83. The issue that came before Jones CJ was whether Nei Tantan, who is the mother of the appellant, was entitled to remain in occupation of a house plot on land owned by one Taboia. The land is not identified by name or number. We were advised by counsel that the plot maybe within 762 o and on the ocean side of the road. The Chief Justice held that the owner of the land where Nei Tantan was living had given her permission to live there. Accordingly Nei Tanton was entitled to remain where she had been living since 1982.

[6]. Sometime in 2005 proceedings were commenced for possession. The appellant was the second respondent. She claimed that she was living on her own land. For that reason the court decided at a hearing that commenced on 14 September 2005 that there should be a boundary determination. The appellant said in evidence that she obtained her land, Tabito 762-i from her mother Nei Tantan and that it ran from the lagoon to the ocean. She was also disputing the house plot, claiming that she was entitled to live there.

[7]. There were a number of adjournments and hearings, the details of which are not relevant to the issues we have to determine. The judgment of the Single Magistrate was delivered on 12 April 2006. In a long judgment he set out the history of the various lots. Some of the findings are not expressed with any precision. However, he concluded that there is no land of the respondent (the present appellant) to the lagoon side towards the road. The respondent’s land, Tabito 762–i is "situated within the land of Tekabu Katarake 762 e (now owned by Tooti Katarake)." The decision concluded:

"The court is not able to establish a stone boundary beside the road having seen that there is no land for the respondent in these places. This means that there is no locus standi for the respondent found by this court where it is able to establish a boundary for appellant and respondent. The place where the respondent is settling is on the land of the appellant."

[8]. In several places in the decision the Single Magistrate states that the land of the respondent Tabito 762-i is "within" Tabito 762-e. Unfortunately the Single Magistrate does not say what he means by "within" and more particularly just where Tabito 762-i is.

Conclusion

I[9]. t is apparent from the transcript of the proceedings in the High Court that there was an issue raised that the Single Magistrate had not identified, namely where was the land of the appellant. Much of the submissions and exchanges in the High Court concerned the existence and whereabouts of certain pits and the pit list. The fact that the Single Magistrate had not identified the respondent’s land seem to have been overlooked in the discussions about the pit lists.

[10]. In the submissions before this court it became increasingly obvious that the identification of the respondent’s land was crucial to resolving the issues between the parties. Counsel for the parties agreed that this was an issue that had not been, and needed to be, resolved.

[11]. Only the Single Magistrate can identify the boundaries of Tabito 762-i. So the appropriate course is to refer the matter back to the Single Magistrate for this to be done.

Result

[12]. The appeal is allowed. The decision in the High Court is set aside. The matter is referred back to the Single Magistrate to identify the boundaries of Tabito 762-i. Each party is to pay their own costs.

Hardie Boys JA
Tompkins JA
Paterson JA