Attorney General v Atanimoa [2007] KICA 21; Civil Appeal 01 of 2007 (30 July 2007)

IN THE KIRIBATI COURT OF APPEAL
CIVIL JURISDICTION
HELD AT BETIO
KIRIBATI

Civil Appeal No 1 of 2007

BETWEEN:

THE ATTORNEY GENERAL IN
RESPECT OF THE DIRECTOR
OF LANDS
Appellant

AND:

BETA ATANIMOA
First Respopndent

AND:

BURENGARENGA BONG
Second Respondent

AND:

OTHERS UNKNOWN BEING
MEMBERS OF THE
HOUSEHOLD OF THE
FIRST AND SECOND
RESPONDENTS
Third Respondents

Before: Hardie Boys JA
Tompkins JA
Paterson JA

Counsel: Birimaka Tekanene for appellant
Joelle Grover for first respondent
Karotu Tibi for second respondent

Date of Hearing: 25 July 2007
Date of Judgment: 30 July 2007

MEMORANDUM OF THE COURT

Leave to appeal

[1] The appellant seeks leave to appeal out of time from the judgment of the Chief Justice delivered on 13 November 2006. The application seeking leave was filed on 6 February 2007, 50 days out of time. In an affidavit counsel for the respondent deposes that he asked the High Court staff for a transcript of the proceedings, that while the transcript was being prepared the file was misplaced in his office and that he did not realise that he had not filed the notice of appeal until he asked for transcripts in other cases.

[2] We reserved the application and commenced to hear the appeal.

The claim

[3] The appellant applied pursuant to s 3 (2) of the Squatters (Recovery of Lands) Act 2005, to recover from the respondents possession of part of land Baremaio 672a ("the land") at Bikenibeu.

[4] The first respondent Nei Beta Atanimoa claims to be entitled to possession of that part of the land on which she is living. According to her affidavit she has been in possession for about 30 years. She had purported to lease part of the land to the second respondent Burengarenga Bong. Whether the second respondent can remain in possession depends on whether the first respondent’s claim to remain in possession is upheld.

[5] The land stretches from the ocean to the lagoon. That part of the land between the main road and the ocean was leased to the Republic for 99 years. This lease was approved by the Lands Court at Abaokoro in case no 78/58 on 4 October 1958. The remainder of the land from the main road to the lagoon was also leased to the Republic, but details of this lease do not appear to have been before the court.

[6] In the course of submissions from counsel it became increasingly apparent that the issues between the parties should be able to be resolved by agreement. Hence we suggested this to counsel, and when they indicated that an agreement was possible we adjourned the hearing to see whether this can be achieved.

[7] We have now received the attached memorandum of settlement, which effectively resolves all the issues. We commend the parties and their counsel for arriving at what is clearly a satisfactory solution.

[8] In these circumstances it is appropriate to grant leave to appeal out of time. We do not consider that any formal order is required, but in case it becomes necessary, we reserve leave to apply.

Hardie Boys JA
Tompkins JA
Paterson JA