Tekaai v Ritere [1998] KIHC 25; HCLA 071.97 (6 June 1998)

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

HCLA 71/97

BETWEEN:

NAUTO TEKAAI
Appellant

AND:

ATEA RITERE
Respondent

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

Date of Hearing: 19 June 1998

JUDGMENT

This is an appeal against a boundary determination made by Single Magistrate Karotu Tiba in case No. 18/97.

The case was heard in the absence of the appellant who had been named as the 5^th defendant. When the case came before the lower court on 6 July 1997 the second defendant applied for an adjournment to the following day to enable the appellant to attend court. The appellant was said to be travelling from Abaiang. When the appellant was not present the next day, the Single Magistrate decided that since the appellant had been aware of the hearing, the case would proceed in his absence. The Single Magistrate appointed the 2^nd defendant to represent the appellant under Rule 28 of the Magistrates' Court Rules.

The appellant's first ground of appeal is that the Single Magistrate was wrong to order the case to proceed in his absence. The appellant claims that he had not been served with a summons and that when he heard about the hearing it was too late to arrange transport from Abaiang. The appellant also argues that in any event the Single Magistrate had no grounds to appoint the 2^nd defendant to represent him.

After perusing the minutes of the proceedings in the lower court we find that we must agree with the appellant. There was no proof before the lower court that the appellant had been served with a summons. The Single Magistrate should therefore have adjourned the case to enable the appellant to be served. A mere mention by another defendant that the appellant knew about the case was not sufficient, particularly when the appellant lived on an outer island. Without proof of service the lower court was not entitled to appoint a representative. We also agree with the appellant's argument that, in any event, there was no evidence before the lower court which would enable it to conclude that the 2^nd defendant might reasonably be expected to have a good knowledge of the history of the title to the appellant's land or other matters in issue as required by Rule 28.

The respondent's contention is that the presence of the appellant at the proceedings in the lower court was not relevant because he should not have been a party in the first place. It is argued that the appellant's land was not affected by the boundary determination. The respondent points out that the appellant owns the land Teere 789n/9, whereas the boundaries which were determined were between the respondent's land, Teere 789n/5, and the adjoining lands on either side, Teere 789n/4 and Teere 789n/6. The appellant, on the other hand, claims that a decision of the Magistrates' Court (Lands) in case No. 145/97 established that the appellant is the residual owner of land on Teere. The appellant contends that it was that land which was affected by the boundary determination in case No. 18/97, which greatly reduced its size.

Whether or not the appellant's land would have been affected by the boundary determination was a question which should have been decided by the lower court after the appellant had been given the opportunity to call appropriate evidence and argue his case. In our view, for the lower court to have decided the issue without giving the appellant that opportunity constitutes a miscarriage of justice.

The appeal therefore succeeds on the first ground and it is not necessary for us to consider the second ground.

The appeal is allowed and the decision of the Single Magistrate in case No. 18/97 is set aside. The case is remitted to the Magistrates' Court for retrial.

THE HON R B LUSSICK
Chief Justice
(26/06/98)

TEKAIE TENANORA
Magistrate
(26/06/98)

BETERO KAITANGARE
Magistrate
(26/06/98)