Tewau v Atea [1998] KIHC 21; HCLA 087.90 (29 April 1998)

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

HCLA 87/90

BETWEEN:

N. TEAO/TEWAU
FOR KPC MAUANAKO
Appellant

AND:

N. ATEA
MAREWENTEATU
Respondents

Mr T Teiwaki for the Appellant
No appearance of 1st Respondent
No appearance of 2nd Respondent

Date of Hearing: 24 April 1998

JUDGMENT

This is an application for leave to appeal out of time against the decision of the Bairiki Magistrates' Court (Lands) in case No. 131/89 delivered on 17 March 1989. In that case the applicant had applied for an order of eviction against the first respondent, who was claiming a right to remain on the land as the holder of a houseplot. The lower court found in favour of the first respondent and the applicant now seeks leave to appeal that decision.

The question is now academic. The first respondent has not made an appearance but she has sent a letter from Christmas Island, witnessed by the court clerk there, advising that she has vacated the land in dispute and does not intend to return. That being the case, she has relinquished any right she may have had to a house plot, and such a right is not one that can be resumed once abandoned.

There has also been no appearance by the second respondent, who was allegedly the owner of the land, or part of the land, occupied by the first respondent. There is an affidavit of service to show that he was served with a notice of hearing but we have heard nothing from him.

Despite all this, the applicant still seeks to proceed because of a concern that the decision of the lower court could be construed as making certain findings regarding the boundary between the applicant's land and the land of the second respondent. We do not think that there is any basis for such concern. It is clear from the minutes of those proceedings that the only evidence that there had been a boundary determination between the two lands came from the first respondent. She was not an owner and her evidence was probably hearsay. Neither of the land owners gave any evidence of a boundary determination having taken place. In fact, the tenor of the evidence of the second respondent was that he did not know whether or not the applicant's maneaba stood on his land.

In our view, the affidavit evidence in support of the application would normally be sufficient for us to grant leave to appeal. However, in the present case it would be pointless for us to do so when there is no longer any issue to decide. For that reason, the application for leave to appeal out of time is refused and dismissed.

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

TEKAIE TENANORA
Magistrate
(29/04/98)

BETERO KAITANGARE
Magistrate
(29/04/98)