Bwebwentekai v Reue [2017] KICA 2; Land Appeal 1 of 2017 (16 August 2017)

IN THE KIRIBATI COURT OF APPEAL ] Land Appeal No. 1 of 2017
LAND JURISDICTION ]HELD AT BETIO ]REPUBLIC OF KIRIBATI ]

BETWEEN NAWAIA BWEBWENTEKAI & FAMILY APPELLANTS
AND SUSAN REUE & OTHERS RESPONDENTS

Before: Blanchard JA

Handley JA

Hansen JA
Counsel: Elsie Karakaua for appellants

Botika Maitinnara for respondents

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

JUDGMENT OF THE COURT

Introduction

[1] For many years the parties had been litigating a dispute over the boundary between the land of the appellants, Tebweao 780a, and the land of the respondents, Teabanimate 779i. The appellants’ lawyer did not attend the final hearing before the Single Magistrate hearing the case on 7 September 2011. The appellants requested an adjournment. The Single Magistrate refused the application. He proceeded to complete the hearing and determine the case, adversely to the appellants. They appealed to the High Court. The Court, comprising the Chief Justice and two magistrates, rejected the appeal. The appellants seek leave to appeal out of time against that decision.

Further background

[2] The boundary dispute was first heard in 1994. The Single Magistrate’s decision was appealed by the appellants and a rehearing ordered. At the rehearing in 2006 the Single Magistrate confirmed the earlier decision. Again the appellants appealed. Again a rehearing was ordered.

[3] The hearing began for the third time on 25 August 2010. The proceeding was dogged by delay. Not all were the fault of the appellants but a number were. On 19 April 2011 their lawyer did not turn up. The case was adjourned. The appellants were ordered to pay costs of $50. On 30 May 2011 neither the appellants nor their lawyer appeared. An adjournment was granted and the appellants ordered to pay costs of $100. The same thing happened on
23 July 2011 and again on 1 September 2011 when the case was adjourned to
6 September 2011.

[4] On 6 September a paralegal from the lawyers acting for the appellants appeared. She requested an adjournment to 11.00 am on 7 September which was granted. The appellants were present at 11.00 am on 7 September but their counsel was not, pleading other Court commitments. The respondents’ counsel pressed for the hearing to proceed. The Single Magistrate ruled:

“There were plenty times for adjourning this boundary determination. It starts from searching for Nawaia, and sometimes for the Surveyor not present and sometimes for the Respondent’s Lawyer wasn’t prepared, just the same as now, not showing up. The boundary determination will proceed”.

High Court decision

[5] At the High Court hearing on 12 September 2013 the appellants advanced one ground of appeal:

“The Single Magistrate erred in law in proceeding with the hearing of the case without the defendants being represented by counsel even though the defendants were present and requested for an adjournment since their lawyer is having a hearing in another court”.

[6] For the appellants it was said that it was a breach of natural justice for the Single Magistrate to hear the case in the absence of counsel for the appellants. The Court addressed the argument in the following passage of its judgment:

“...... the unavailability of the lawyer to be present in Court does not and cannot amount to a breach of the rules of natural justice if such absence was of the party or his own lawyer’s making. Like in the present case, the chronology of events showed that the absence of the lawyer on 7 September 2011 hearing was of the lawyer’s own making. The Single Magistrate was perfectly entitled to proceed with the matter since the appellants themselves were present”.

[7] The Court concluded there was simply no cause for complaint by the appellants and dismissed the appeal.

Grounds of Appeal

[8] The grounds of appeal as set out in the Notice of Appeal are:

“i. The appellants in not being represented were deprived of natural justice as they requested that they needed their lawyer who was also appearing in other cases at the Magistrates Court;

ii. In not being represented, the Appellants upon their own ignorance had failed to further cross examine the Lands Surveyor on the boundary marks given in evidence and they failed to object to the proceedings were conducted irregularly when the Respondent’s lawyer who had closed his side of the case requested that further evidence from his witnesses be introduced.

iii. The case involves a paramount issue relating to the land of the Appellants which involved great dispute which it would be fair that the Appellants were assisted by a lawyer.

iv. And if several adjournments had been awarded before
7 September 2011, the Single Magistrate would have awarded costs to the Appellants whose lawyer did not turn up”.

[9] Only the first of the grounds of appeal was before the High Court. The third and fourth cited grounds are matters of argument and could not amount to errors of law. The second ground is capable of constituting an error of law but cannot be raised for the first time in this Court. Except in the most exceptional circumstances it is contrary to principle to allow a party to raise an issue on appeal that had not been raised in the Court below: Metworthy v University of Wollongong [1985] HCA 28; (1985) 60 ALR 68; (1985) 59 A LJR 481. This is not such a case.

[10] Regardless, we find no merit in the argument. It is clear from the record that the appellants did not want the surveyor to play any part in the hearing. They insisted that it was for them, not the surveyor, to point out the location of the disputed boundary.

[11] As to the first ground of appeal, we are in full agreement with the High Court’s finding that the refusal to adjourn was not a breach of the rules of natural justice. The right to be represented by counsel is not unqualified. In this case the Single Magistrate ruled that it must give way to the respondents’ right to have the case heard and determined expeditiously. He was clearly justified in doing so. The appellants had already been extended considerable latitude. Further delays would not only prejudice the respondents but risked bringing the administration of justice into disrepute.

Result

[12] The appeal must be and is accordingly dismissed. The appellants are to pay costs as agreed or fixed by the Registrar.

____________________________

Blanchard JA

____________________________

Handley JA

____________________________

Hansen JA