Kabiri v Ariera [1998] KIHC 18; HCLA 047.97 (27 February 1998)

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

HCLA 47/97

BETWEEN:

EREKITE KABIRI
Appellant

AND:

ATOTI ARIERA
Respondent

Mr B Berina for the Appellant
Mr T Teiwaki for the Respondent

Date of Hearing: 27 February 1998

JUDGMENT

This is an appeal against the decision of the South Tarawa Magistrates' Court (Lands) in case No. 181/97. The Single Magistrate hearing the case ordered that the land Nawerewere 650"o" be divided into 3 portions. The ocean side was allocated to Kamanuka, the middle portion to the appellant, and the lagoon side to the respondent.

The appellant is unhappy with that decision because part of his land on the lagoon side was given to the respondent. Prior to the decision, the appellant's land fronted onto the lagoon, but that is no longer the case.

The appellant relies on the following grounds of appeal:

1. The learned Single Magistrate erred in law in accepting that the Appellant, EREKITE, had been served in that there is no evidence that he had been served.
   
2. The learned Single Magistrate erred in law in appointing Tekaai Kamanuka as representative of the Appellant in that there was no basis upon which TEKAAI KAMANUKA could reasonably be expected to have good knowledge of neither the history of the title to the land under dispute and nor the matter in issue.
   
3. The learned Single Magistrate erred in law in failing to have recourse to earlier decisions of the Court before making his decision.
   

It is not disputed that the hearing in the court below proceeded in the absence of the appellant. The Single Magistrate found that it had been proved that a summons had been served on the appellant. He then directed that the hearing proceed with Tekaai Kamanuka (the 3^rd defendant in that case) as the appellant's representative. Tekaai did not challenge the respondent's petition. In fact, the only evidence he gave was that he agreed with it. Since Tekaai also represented the remaining defendant Marewentetaake, the Single Magistrate assumed that all of the parties were agreeable to the distribution proposed by the respondent and made the order now under appeal.

In the court below, the only evidence of service upon the appellant came from the respondent, Atoti Ariera. The respondent testified as follows:

"I went to Erekite's house yesterday to remind him of court today. Erekite was not home, but his wife was, so I told him (sic) of the case. She said she would inform Erekite.

Court: did you hand over a summons for that?

A: Yes I did, this was the case that was adjourned before".

Counsel for the respondent tells us that he now has instructions that the summons was served on the appellant on 8 April 1997 and that all the respondent did when he went to the appellant's house was to tell the wife to remind the appellant of the hearing the next day. That was not what the respondent said under oath in the court below and we reject that explanation.

The situation before the Single Magistrate was that the appellant had not come to court even though an important issue concerning his land was about to be decided. That he would wish to remain away was curious enough. But also to be considered was that personal service on the appellant had not been proved, and that the only evidence that the appellant's wife had been served came from the opposing party. In our view, all of those factors point to the probability that the appellant was not aware of the hearing. In the circumstances, we think that the Single Magistrate was wrong to find that service upon the appellant had been proved.

It follows that the appeal must succeed on Ground 1. It is not necessary for us to consider the other grounds. The appeal is allowed and the decision of the Single Magistrate is set aside. The case is remitted to the magistrates' court for retrial and we direct that every person with an interest in the subject land is to be summoned to the hearing.

THE HON R B LUSSICK
Chief Justice

TEKAIE TENANORA
Magistrate

BETERO KAITANGARE
Magistrate