Tawita v Amatia T [1998] KIHC 20; HCLA 095.90 (29 April 1998)

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

HCLA 95/90

BETWEEN:

N. TETAAKE TAWITA
N. TAKERURU TAWITA
IOANNA TAWITA
Appellants

AND:

AMATIA T
N. MEERE BAA
Respondents

Mr T Teiwaki for the Appellants
Mr D Lambourne for the Respondents

Date of Hearing: 24 April 1998

JUDGMENT

On 27 March 1990 the Nonouti Magistrates' Court (Lands) in case No. 21/90, in the absence of the appellants, ordered a distribution of lands registered under the names Nei Bou Tawita (mt) and Mere Baa. That decision is now appealed on the following grounds:

1. The Magistrates erred in law in allowing N. Teieta to represent the appellants in the absence of any authority from the appellants.
   
2. The distribution was unfair in the circumstances.
   

The lands distributed were originally owned by one Taraora. He had two sons, Tawita and Baa. The appellants are the children of Tawita. The respondent Nei Mere Baa is the daughter of Baa. The respondent Amatia is the son of Nei Mere Baa.

Both of the respondents managed to attend the hearing in the lower court, as did the eldest sister of the appellants, N. Teieta Tawita. We are told from the bar table that the appellants, who were living in Abemama - as were Amatia and N. Teieta - were aware of the hearing but, for some reason, were not sure of the date. On 5 April 1990 they sent a telegram to the Court Clerk on Nonouti asking for an adjournment but, of course, by then the hearing had already been completed. They learned that fact when they arrived in Nonouti several days later.

It is clear from their decision that the magistrates were satisfied that the appellants had failed to obey the summons with which they had been served. The magistrates then appointed the eldest sister of the appellants, Nei Teieta Tawita to represent them. In doing so, the magistrates were correctly following the procedure laid down in Rule 28 of the Magistrates' Courts Rules. Rule 28 provides as follows:

"28. If an applicant fails to appear at the time and place at which he has been required to attend the court and does not excuse his failure to the satisfaction of the court, the court may strike out his application, and if any party does not obey a summons issued under paragraph 1 and does not excuse his failure to the satisfaction of the court, then, after proof of service, the court may appoint a relative of such party to the proceedings as may reasonably be expected to have good knowledge of the history of the title to the land under dispute, or other matter in issue, to represent each party and may thereupon proceed to hear and determine the matter in issue".

It can be seen that the rule does not require the representative appointed by the court to be in possession of an authority from the missing parties. Under the rule, the court can proceed to hear and determine the case once it is satisfied that the absent party has been served with a summons and that the relative appointed as a representative could reasonably be expected to have the knowledge required. That is exactly what happened in the case now under appeal. We reject the appellants' claim that what the magistrates did was an error in law.

We also do not think that the appellants have established that the distribution was unfair. Of the 17 lands distributed, 9 were given to the appellants' family, being the issue of the eldest son Tawita and 8 lands were given to the respondents' family, being the issue of Baa. We note from the minutes that Nei Teieta Tawita told the lower court that the proposed distribution was fair.

We are told from the bar table that, prior to the distribution, the respondents had disposed of one other land, and that this was a matter that the appellants would have put before the magistrates' court because it would have affected the shares of the lands distributed. However, the eldest sister, Nei Teieta, whose interest in the proceedings was certainly no less than that of the appellants, could have raised the matter before the magistrates had there been any substance to it.

It follows from what we have said that the appeal must fail and is dismissed.

THE HON R B LUSSICK
Chief Justice
(29/04/98)

TEKAIE TENANORA
Magistrate
(29/04/98)

BETERO KAITANGARE
Magistrate
(29/04/98)