Kakiaba v Teteki [2004] KIHC 146; Land Review 01 of 2004 (17 June 2004)

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

High Court Land Review 1 of 2004

Between:

KAOTIATA KAKIABA MT MM
Applicants

And:

BOBAI TETEKI FOR ISSUES OF
KABAO AND TEKAU
ESTATE OF KAKIABA TEKANENE
Respondents

For the Applicants: Mr Banuera Berina
For the Respondents: Ms Jennifer Troup

Date of Hearing: 17 June 2004

JUDGMENT

This is an unfortunate case in which "a balance (has) to be struck between the right of a party not to have the proceedings drawn out unnecessarily and the right of the opposing party to put his case" to paraphrase the words of the Court of Appeal in Teaobiti Emeriki v Titerou Tekabu (CA 4/2003 @ p. 5).

The respondents applied to the Court to have registered the transfer of land from Kakiaba Tekanene, then an old man, to themselves. The transfer may wrongly have affected the rights of Kakiaba's children, the present applicants. The children were summoned to appear but either did not or when they did, asked for adjournments. How far the fault for the consequent delays was theirs, how far just bad luck is a matter of dispute. Finally the Single Magistrate gave judgment without having heard them. They have now applied for a review of the decision.

Mr Berina has reminded us of Magistrates' Court rules 28 and 29. The Single Magistrate did not use the rules to appoint a representative when there was no appearance. Ms Troup to the contrary has complained that her clients had been unfairly delayed and should be delayed no longer.

Finally we have to strike a balance of fairness between the parties. We think this means giving the applicants another chance but a last chance, to be heard.

The application is granted: the decision of the Single Magistrate on 10 February 2003 is quashed and the case returned to the Magistrates' Court for rehearing. We emphasise that the applicants have been given a last chance but we follow the Court of Appeal in Teaobiti's case in saying that the Magistrates' Court may "well be justified in refusing any further adjournments".

THE HON ROBIN MILLHOUSE QC
Chief Justice

BETERO KAITANGARE
Magistrate

RARATU IEITA
Magistrate