Kabuati v Bangao [1998] KIHC 41; HCLA 053.98 (15 September 1998)

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

HCLA 53/98

BETWEEN:

NAMORI KABUATI
Appellant

AND:

TEKARIKA BANGAO
Respondent

Mr B Berina for Appellant
No appearance of Respondent

Date of Hearing: 15 September 1998

JUDGMENT

This is an appeal against an order of the Tabiteuea North Magistrates' Court (Lands) made on 14 August 1998 in case No. 31/98. The order was that the appellant's house, which is inside the respondent's land, was to be removed within one month.

The respondent has not been served with notice of this appeal and is not present in court. However, for reasons which will become obvious, we have decided to hear the appeal ex parte.

The order of the lower court is now appealed on the following grounds:

1. The Lands Court erred in law in proceeding with the hearing in the absence of the Appellant without proof of service upon the Appellant and as such the Appellant was not afforded the opportunity to put forward defence/defences which could have been available to him under the law.
   
2. The Lands Court erred in law in ordering the eviction of the Appellant's house from the Respondents' land in that such order was not the order of the Court in Case No. 6/90 as that was a boundary determination case and not an eviction case.
   

The litigious history of this matter goes back to 1991. On 18 July 1991 the appellant brought an action in the magistrates' court claiming that the respondent had built his house on the appellant's land. On 22 July 1991 the magistrates delivered a decision determining the boundary between the two lands. It was clear from that decision that it was in fact the appellant who had built his house inside the respondent's land.

The appellant appealed to the High Court. In HCLA No. 153/91 the High Court, without giving any reasons, declared the proceedings in the lower court to be null and void and ordered a new trial.

The respondent appealed to the Court of Appeal. The Court of Appeal, in a decision delivered on 23 February 1996 in Land Appeal No. 3 of 1994, set aside the decision of the High Court and confirmed the decision of the magistrates' court. The decision of the Court of Appeal also showed that not only had the matter been fully canvassed and argued in that Court but that an examination by the Court of the evidence before the magistrates' court indicated that there was no error in law or fact that would justify appellate interference.

The court of final appeal had thus decided that the present appellant's house had been built inside the present respondent's land. That should have been the end of the matter, but the appellant has refused to follow the decision of the Court of Appeal and his house still remains on the respondent's land. It thus became necessary for the respondent to apply for the order which is now under appeal.

The present case first came before the magistrates on 4 June 1998, but it was adjourned because the appellant had not been served. The case came back before the magistrates on 14 August 1998. The appellant was then represented by a relative named Teikake Namori, who was living in the appellant's house. Teikake told the magistrates that he was not authorised to do anything in court and asked for an adjournment. The respondent objected and the application was refused.

In our view, the magistrates were quite correct in proceeding to make the order. The issues between the parties had already been decided. All the magistrates' court did was to make an order to give effect to its own judgment, which had already been confirmed by the Court of Appeal. The magistrates could have made such an order whether or not the appellant, or a representative of the appellant, had been present.

Ground 1 of the Notice of Appeal mentions "defences" which the appellant was prevented by his absence from putting forward to the magistrates' court. Counsel for the appellant has enlarged on this by telling us that the appellant could have argued firstly, that the house in question belonged to him and secondly, that the doctrine of adverse possession applied. Ground 1 demonstrates in the appellant a total misconception of the nature of the proceedings before the magistrates. As already mentioned, the issues between the parties had already been decided and the magistrates had been asked to make an order to give effect to that decision. There was no new cause of action to which the appellant could raise defences. We might add that throughout the history of this matter the appellant's case has always been that the respondent's house had been built on his land. The matters now attempted to be raised by way of "defence" make their appearance for the first time. We do not think Ground 1 has any merit and it is rejected.

As regards Ground 2, case 6/90 was a boundary determination which showed that the appellant's house was inside the respondent's land. The lower court could have at that stage made the order it has now made. Perhaps it did not do so then because in that case the applicant was the appellant, not the respondent. In any event, where a court decision shows that the house of one party stands inside the land of the other party, an order to remove the house is the logical and obvious way to give effect to that decision. In such circumstances, it is of no assistance to the appellant to draw an artificial distinction between a "boundary determination" and an "eviction case". In our judgment, ground 2 also has no merit and is dismissed.

We are left with the impression that, by bringing this appeal, the appellant is simply attempting to put off the inevitable for as long as he possibly can.

The appeal is dismissed. The appellant's house which is inside the respondent's land is to be removed on or before 6 October 1998. After that date the Tabiteuea North Magistrates' Court may issue a warrant for removal, and proceedings may also be instituted against the appellant under section 31 of the Native Lands Ordinance Cap. 61 for failing to comply with a court order.

THE HON R B LUSSICK
Chief Justice
(15/09/98)

BITIARE EKERA
Magistrate
(15/09/98)

BETERO KAITANGARE
Magistrate
(15/09/98)