Temarewe v Tekautu [2017] KICA 1; Land Appeal 2 of 2017 (16 August 2017)

IN THE KIRIBATI COURT OF APPEAL ] Land Appeal No. 2 of 2017
LAND JURISDICTION ]HELD AT BETIO ]REPUBLIC OF KIRIBATI ]

BETWEEN IOANNA ATERA IRO TEMAREWE
REPRESENTATIVE BY TEKIETE AS
SUCCESSOR IN TITLE APPELLANT
AND BURENTARAWA TEKAUTU 1^st RESPONDENT
REIMAURUA RURUTAAKE 2^ND RESPONDENT

Before: Blanchard JA

Handley JA

Hansen JA
Counsel: Batitea Tekanito for appellant

Mantaia Kaongotao for 1^st respondent

Kiatoa Iaoniman for 2^nd respondent

Date of Hearing: 11 August 2017
Date of Judgment: 16 August 2017

JUDGMENT OF THE COURT

[1] This appeal from the decision of the High Court attempts to challenge the determination of the boundary between the appellant’s land and that of the respondents. The judgment of the High Court under appeal was delivered on 24 April 2014 but the notice of appeal was filed, two years and three months out of time, on 29 July 2016.

[2] The boundary dispute was before the Magistrates’ Court in case
No. 44/2010 and again in case 100/2010. The appeal to the High Court was brought from case 100/2010. There was no appeal from the decision, adverse to the appellant, in case 44/2010.

[3] In case 44/2010 the Single Magistrate held in her decision on
22 June 2010 that the relevant boundary had been settled by agreement of the then owners, accepted by the lay magistrates, in case No. 9/1977. The Single Magistrate, having considered the minutes of the decisions of the lay magistrates in cases 9/1977, 10/1977, and 11/1977, held that she had no power or jurisdiction to rehear the boundary dispute. There was no appeal from this decision.

[4] The respondent then brought case 100/2010 to have the boundary determined yet again, a proceeding that the Chief Justice thought was quite unnecessary in view of the decision in case 44/2010.

[5] Case 100/2010 was heard by a different magistrate who accepted the evidence called by the present respondents and found on the merits that the boundary was as determined by case 9/1977.

[6] The appellants challenged this decision in the High Court by an appeal heard by the Chief Justice and two magistrates. They ruled that, in the light of the decision in case 44/2010, the appellant could not be heard to say that case 9/1977 had nothing to do with the appellants’ land. “It was too late in the day to raise such a complaint”. The decision in case No. 100/2010 was decided on the merits, and not because the issue was res judicata based on the decision in case 44/2010.

[7] The High Court concluded:

“The boundary fixed by case 9/77 over the appellants’ land remains the same. It has been confirmed by Case No. 44/00 and Case 100/10”.

[8] Ms Tekanito attempted to persuade us that case No. 9/1977 did not establish the boundary between the appellants’ land and that of the respondents. This attempt could not possibly succeed on the facts of this case. The argument had been rejected by two magistrates at the trial level, and by the Chief Justice assisted by another two magistrates at the appellate level. It would be a rare case indeed where expatriate judges could reverse such concurrent findings, and this is manifestly not such a case. There is no proper basis for an extension of time but the Court dismisses the appeal on the merits.

[9] Appeal dismissed with costs.

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Blanchard JA

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Handley JA

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Hansen JA