Rutete & Senila v Turerei [2004] KIHC 136; Land Appeal 15 of 2003 (9 June 2004)

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

High Court Land Appeal 15 of 2003

Between:

RUTETE & SENILA
(REP BY NEI KIRITA & TERURU)
Appellants

And:

TARATOBA TUREREI
Respondent

For the Appellants: Mr Aomoro Amten
For the Respondent: Ms Jennifer Troup

Date of Hearing: 9 June 2004

JUDGMENT

The magistrates went to look at the land but the appellant claims in an affidavit that only one of the magistrates did a full inspection: the others looked at the boundary on the lagoon side but did not walk to the ocean side: they went back and the appellant says, were seen talking to the respondent. Both allegations are denied by the respondent who says in an answering affidavit that all the magistrates made a thorough inspection and he did not talk to the magistrates on his own.

A dispute of facts on the affidavits. As a rule a Court would hear oral evidence to decide the dispute. We are unwilling to do that in our situation on Maiana. Instead we have studied the transcript in the Magistrates' Court. There appears to have been no evidence except bare assertions from Nei Kirita and to the contrary from Taratoba. The decision:

This Court confirms that both parties are not agreed with their marks, and since that this case has been heard for many times now, therefore previous marks would left alone.

From this transcript it appears that the Court based its decision, not on evidence but on what may have been said in previous hearings.

In his amended grounds of appeal Mr Amten complains first that the decision is not supported by "facts or evidence" and secondly that the Magistrates referred to previous hearings without giving the parties the opportunity to address them on what those hearings were. The decision therefore is unsafe.

We agree that the decision is unsafe and there should be a fresh hearing at which all the magistrates should be careful to make a complete inspection and hear evidence from the witnesses for each side before coming to a decision.

Appeal allowed: decision of the Magistrates' Court quashed and case sent back to the Magistrates' Court for hearing again in accordance with these reasons.

THE HON ROBIN MILLHOUSE QC
Chief Justice

BETERO KAITANGARE
Magistrate

RARATU IEITA
Magistrate