Rewi v Tirikai [1996] KIHC 62; HCLA 040.89 (24 July 1996)

IN THE HIGH COURT OF KIRIBATI
HELD AT MARAKEI
(BEFORE THE HON R LUSSICK C.J.)

HCLA 40/89

BETWEEN:

TOUN REWI
Appellant

AND:

KANIKAN TIRIKAI
Respondent

Appellant in person
Mr D Lambourne for the Respondent

JUDGMENT

This is an appeal against the decision of the magistrates' court in case no. 13/89 awarding the plaintiff/respondent damages of $37.50 for damage to his pandanus trees.

Toun Rewi, who was the plaintiff in the lower court, is incorrectly shown as the appellant in this appeal. In fact he is the respondent. The true appellant is Kanikan Tirikai who was the defendant in the original proceedings. He is represented today by the People's Lawyer, Mr Lambourne.

It is quite evident from the original Gilbertese record that the lower court committed a serious procedural error which justifies its decision being set aside. The hearing took place over 4 days. When the court resumed after adjourning on the first day the panel of magistrates was not the same as that which had sat on the first day. One of the magistrates had been replaced. The new magistrate had not, of course, heard any of the considerable evidence which had been given on the first day. Instead of commencing the hearing from the start again as it should have done, the magistrates' court, with the newly composed panel, simply took up where the old panel left off. The decision in the end went against the appellant and he is quite justified in complaining that he might not have been given a fair hearing.

I note also from the evidence that the plaintiff/respondent admitted that he was not the owner of the land on which the pandanus trees stood. He would not, therefore, have had any title to bring an action in respect of damage to trees on that land.

Because of the unsatisfactory nature of the proceedings in the lower court the appeal will be allowed and the decision of the magistrates' court set aside. In view of what I have said about the plaintiff/respondent's lack of standing to sue, the matter will not be remitted for retrial.

THE HON R B LUSSICK
Chief Justice
(24/07/96)

TEKAIE TENANORA
Magistrate
(24/07/96)

BETERO KAITANGARE
Magistrate
(24/07/96)