Teenga v Teenga [2008] KICA 6; Land Appeal 6 of 2008 (20 August 2008)

In the Kiribati Court of Appeal
Land Jurisdiction
Held at Betio
Republic of Kiribati

Land Appeal No 6 of 2008

Between:

RARA TEENGA
Appellant

And:

KAKAI TEENGA
Respondent

Before: Tompkins JA
Fisher JA
Smellie JA

Counsel: Mantaia Kaongotao for appellant
Banuera Berina for respondent

Date of Hearing: 18 August 2008
Date of Judgment: 20 August 2008

JUDGMENT OF THE COURT

[1] For over 20 years the parties, who are sisters, have been arguing over their shares in their mother’s estate. In the latest decision the High Court held that the decision of the Single Magistrate delivered on 27 November 2007 following a hearing on 11 April 2007 should be quashed and the case returned to the Magistrates’ Court for rehearing in accordance with the decision in the High Court. From that judgment the appellant has appealed to this court.

Judgment in the High Court

[2] In his judgment the Chief Justice refers to the long history of the case, and to the court’s judgment in HCLA 7/05 and HCLA 24/05 where the court referred the case back to the Single Magistrate by consent, the High Court commenting:

"The reason for a retrial is that the Single Magistrate did not take into account HCLA 64/87, Nei Kakai Teenga, Nei Teraiti Teenga v Nei Rara and Nei Rara and Teeua v Nei Kakai Teenga and Nei Teraititi Teenga which is most relevant to the matters in dispute."

[3] The decision in HCLA 64/87 is lengthy. However, the Chief Justice in the court’s judgment helpfully sets out the effect of the decision and how it should be applied by the Single Magistrate. For present purposes we need not set out that summary. He found that the decision of the Single Magistrate does not have regard to HCLA 64/87.

The grounds of appeal

[4] The grounds of appeal are

"The High Court erred in law in;

1. Failing to consider the previous decisions which had already took into account all the issues raised in this case.
2. Holding that the Magistrate fail to go to see the land itself.
3. Allowing the grounds of appeal which are based on facts.
4. Further grounds at the completion of the transcript." (errors included)
   

[5] No further grounds were submitted. Section 10 (1) (a) of the Court of Appeal Act 1980 provides that an appeal shall lie from any decision of the High Court in the exercise of its appellate jurisdiction "on any ground of appeal that involves a question of law only."

[6] Counsel for the appellant sought to rely on s 15 of the Court of Appeal Act:

Notwithstanding anything hereinbefore contained but subject to the provisions of section 123 of the Constitution, the court may entertain an appeal made under the provisions of this part of this Act on any terms that it thinks just.

[7] It was his submission that this section enables this court to entertain an appeal from the High Court in its appellate jurisdiction even where the grounds of appeal do not involve a question of law. We do not accept this submission. Section 15 applies only to an appeal " . . . made under the provisions of this part of this Act . . ." An appeal from the High Court in its appellate jurisdiction that does not involve any question of law is not an appeal to which the section applies. It follows that in this case, the section has no application.

[8] The grounds of appeal do not involve any questions of law. They are all matters of fact or procedure. They do not provide any valid grounds for an appeal to this court. Accordingly this court does not have jurisdiction to entertain the appeal.

[9] We should add that we heard full argument on the appeal. For reasons we need not detail, we are satisfied that the appeal could not succeed in any event.

Result

[10] The appeal is dismissed. The respondent is entitled to costs to be agreed or taxed. As there was no need for the respondents to be separately represented, the costs are to be for one counsel only.

Tompkins JA
Fisher JA
Smellie JA