Nakibae v Atate [2001] KIHC 14; Land Appeal 43 of 1999 (9 April 2001)

IN THE HIGH COURT OF KIRIBATI
LAND JURISDICTION
HELD AT ABAOKORO
REPUBLIC OF KIRIBATI

High Court Land Appeal 43 of 1999

Between:

BATIKARE NAKIBAE
Appellant

And:

TAOM ATATE
TIN TAMOAIETA
Respondent

For the Appellant: Mr Banuera Berina
For the Respondent: Mr Neil Allen

Date of Hearing: 9 April 2001

JUDGMENT
(Ex Tempore)

Mr Berina argued this appeal on the ground that his client, a layman, represented himself before the Single Magistrate and did not appreciate the significance of a lease into which his client’s father entered in 1958: had the Court been told of this it would have greatly strengthened the appellant’s case. As it was the matter was not mentioned at all at the hearing.

The general rule is that an argument – and the evidence which could have accompanied it – will not be considered by a court of appeal, unless for some reason the argument and evidence were not available at the time of first hearing. That is not so here: the argument and the evidence were available but not raised.

If we were to do other than dismiss the appeal the Court would be flooded with appeals taken on the ground that a party at first instance overlooked something which could have been put. Finality of decision would be lost.

Despite Mr Berina’s most earnest and persuasive plea we must dismiss the appeal.

	THE HON ROBIN MILLHOUSE QC CHIEF JUSTICE
TEKAIE TENANORA MAGISTRATE			BETERO KAITANGARE MAGISTRATE