Baraniko v Timan [2003] KIHC 56; Land Appeal 36 of 2000 (13 May 2003)

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

High Court Land Appeal 36 of 2000

Between:

KINTA BARANIKO
Appellant

And:

IAKOBA TIMAN
Respondent

For the Appellant: Mr Aomoro Amten
For the Respondent: Ms Taoing Taoaba

Date of Hearing: 13 May 2003

JUDGMENT
(Ex Tempore)

Mr Amten offered a fresh ground of appeal, Ms Taoaba not opposing:

"The learned Single Magistrate erred in law in not giving the opportunity to the parties to contest the validity of the 'MEASUREMENT BOOK' that he sought to rely upon in his judgment".

It is agreed that each party pointed out to the Single Magistrate the boundary for which he contended but then the magistrate fixed another boundary. He was entitled to fix a boundary which was not that contended by either party. It is agreed between counsel that he fixed it relying on the 'Measurement Book'. Unfortunately the magistrate did not give either side the opportunity to make submissions regarding the Measurement Book whether he should rely on it or not, before he made his decision. That was a mistake. If a court is going to rely on some document or fact which has not been canvassed in evidence or argument the court should always first give the parties an opportunity to comment on that document or fact.

The appeal is allowed, the decision of the Single Magistrate quashed and the case returned for rehearing in accordance with these reasons.

THE HON ROBIN MILLHOUSE QC
Chief Justice

TEKAIE TENANORA
Magistrate

BETERO KAITANGARE
Magistrate