[1979] KILR 70

HIGH COURT OF THE GILBERT ISLANDS

Civil Appeal No 37 of 1979

KAUAE IKAUEA

v

BAKATOKIA IKAUEA

(O'BRIEN QUINN C.J.)

Betio: 11th June 1979

Appeals from the Magistrates' Court (Lands) lie to the High Court composed of the Chief Justice or a Judge sitting with four Lands Appeals Magistrates, since 1st May 1978. Appeals from the former Lands Courts lie to the Lands Courts Appeals Panel but as the Lands Courts ceased to operate as from 30th April 1978 such appeals as remain will continue to be heard by the Lands Courts Appeals Panel which has been allowed to remain in existence for that purpose only and for no other purpose.

The facts are sufficiently set out in the Judgement.

HELD: (1) That the Lands Courts Appeals Panel had no jurisdiction to hear an appeal from the Magistrates' Court (Lands), as seen an appeal lay to the High Court;

(2) That the appeal would be allowed, the decision of the Lands Courts Appeals Panel set aside and the appellant given leave to appeal to the High Court within 21 days.

Native Lands (Amendment) Ordinance 1977 (No 19 of 1977) section 5 Magistrates' Courts Ordinance 1977 (No 17 of 1977) Part VIII Magistrates' Courts (Consequential Amendments) Ordinance 1978 (No 8 of 1978).

O'BRIEN QUINN C.J.:-

This is an appeal against the decision of the Lands Courts Appeals Panel sitting at Nonouti on 5th and 12th January 1979 in which the Panel dismissed the appeal of Kauae Ikauea, the present appellant, against the judgement of the Magistrates' Court (Lands), wrongly referred to as the "Lands Magistrates' Panel", given on 31st October 1978.

2. Before looking into the merits or otherwise of the appeal I must point out that the Lands Courts Appeals Panel had no jurisdiction whatever to hear the appeal. The Lands Courts Appeals Panel, which I will refer to as LCAP, has jurisdiction to hear appeals from the former Lands Courts only. It has no power to hear appeals from the Magistrates' Courts sitting with five Magistrates to hear land causes and matters. Appeals from the Magistrates' Courts hearing land causes and matters can be heard by the High Court only under the provisions of section 76 of the Magistrates' Courts Ordinance 1977 (Ordinance No 17 of 1977). The Lands Courts ceased to exist on 1st May 1978, but as there were appeals outstanding against their decisions the LCAP was allowed to continue in existence so that these outstanding appeals could be disposed of and for no other reason. The Magistrates' Courts commenced sitting on 1st May 1978 and hear civil, criminal and land cases. Appeals from the Magistrates' Courts go to the High Court.

3. The L.C.A.P. should, therefore, not have heard the appeal, and the decision of the L.C.A.P. in that appeal is set aside for want of jurisdiction.

4. The relevant sections of the law will be found in section 5 of the Native Lands (Amendment) Ordinance 1977 (No 19 of 1977), Part VIII of the Magistrates' Courts Ordinance 1977 (No 17 of 1977) and the Magistrates' Courts (Consequential Amendments) Ordinance 1978 (No 8 of 1978).

5. The original decision of the Magistrates' Court (Lands) given on 31st October 1978 (not numbered) still stands and that decision, strictly speaking, cannot be appealed against as the time for appeal, 21 days, has passed. However, in view of the fact that the L.C.A.P. should have refused to hear the appeal but failed to do so I will give the appellant leave to appeal to the High Court within 21 days from the date of this judgment which should be communicated to him without delay.

6. In passing, I would remark, on the merits of the appeal, that it would assist the High Court greatly if the will of Tetake Ikauea were produced and examined as the decision of the Magistrates' Court at Nonouti turned on the contents of the will but it was never seen by the Court. At least, it so appears from the Record. Further, it would be of assistance if relevant and pertinent witnesses could be called by both sides in support of their contentions.

7. The appeal, for the reasons given above, is allowed, but the Magistrates' Court's (Lands) decision of 31/10/1978 still stands.