Bukai v Talanga [2019] KIHC 116; Appeal 34 of 2019 (2 October 2019)

IN THE HIGH COURT OF KIRIBATI 2019

APPEAL NO. 34 OF 2019 AGAINST MISCELLANEOUS APPLICATION
NO. 115 OF 2019

[KOBAIA BUKAI
[REWIN TEAIRO
[TEURINTA TEETI
[TIRITOA TAAKE APPELLANTS
[
BETWEEN [AND
[
[NEI NORAH TALANGA RESPONDENT

18 September 2019

Ms Taaira Timeon for 1^st & 2^nd Appellants
Mr Banuera Berina for Respondent
No Appearance for 3^rd & 4^th Appellants

JUDGMENT

Muria, CJ: This appeal is against the decision of the Single Magistrate given on 16 August 2019 in Miscellaneous Application 115/19. The subject matter before the Magistrates’ Court in Miscellaneous Application 115/19 was for an injunction brought by the respondent against the appellants.

2. There is one thing that needs to be made clear in this case. Miscellaneous Application 115/19 was not a Land Case. It was a civil case, in the form of an application, in which the respondent asked the Court for an order of interlocutory injunction. The Appeal against the Magistrates’ Court’s decision in Miscellaneous Application 115/19 cannot be intituled “Land Appeal” as is done in this case. Neither Counsel for the appellants nor Counsel for the respondent picked the point up.

Brief background

3. In brief, the rights of the respondent to her land in Tebikeieta 695u had been determined by the Court on 12 September 2011. The boundary between the respondent’s land Tebikeieta 695u and Nei Bwebwe Betero’s land
Tebikeieta 695m was settled by the Court in 2011.

4. The appellants were alleged to have encroached onto the respondent’s land and the respondent brought Case Number 464/19 to evict them from her land Tebikeieta 695u. While the CN 464/19 was still on foot, the respondent brought the application Miscellaneous Application 115/19 seeking an interlocutory injunction against the appellants pending the determination of
CN 464/19.

5. In the course of the hearing of Miscellaneous Application 115/19, the Magistrates’ Court decided that it should conduct a site visit. That the Court did, and while on the land, the Court was able to see the boundary of the respondent’s land.

6. It was also during the visit to the locus in quo that the Court found that the appellants did in fact encroach onto the respondent’s land. The appellants have buildings and other properties on the respondent’s land. During the visit to the locus in quo the Court told the defendants (appellants) “to move their buildings and their fence away from the land of the plaintiff. The defendants were happy when they were told after seeing the boundary of the land”.

7. The record does not show that any formal order was made by the Court, either by way of an injunction or eviction during the visit to the locus in quo. This is a crucial point in determining this appeal since an appeal can only be brought against a judgment or order of the Court.

8. As stated above, all that transpired was that the Single Magistrate, having seen for himself during the site visit that the appellants had their buildings and other properties inside the respondent’s land, told the appellant to move their properties out of the respondent’s land, and the appellants agreed to do so. Nothing further was shown on the record, indicating that hearing of Miscellaneous Application 115/19 had concluded with formal orders made. In the Court’s view that is the only correct way to read the Court’s Minutes recorded during the visit to the locus in quo on 1 August 2019.

9. Further, in my view, the Single Magistrate very properly did not make any order in the nature of an eviction in Miscellaneous Application 115/19 because it would be wrong for him to do so. An eviction order is the subject of substantive consideration to be determined by the Magistrates’ Court in CN 464/19. The Court cannot use the interlocutory application such as Miscellaneous Application 115/19 for interlocutory injunction to grant an eviction order which is the remedy sought in the substantive case CN 464/19.

10. The Single Magistrate in the present case did not issue any eviction order against the appellant nor did he issue an injunction order against the appellant. It might well be that the Single Magistrate saw no need to issue an injunction against the appellant because they had agreed to move out of the land.

11. One is startled by the fact that the appellants conceded that their properties were found to be inside the respondent’s land, and agreed to move them out from the respondent’s land without any order from the Court at all ordering them to do so, yet they mounted an appeal that has no basis whatsoever.

12. Counsel for the appellants seems to make much of the proceedings during the visit to the locus in quo to ground the basis for the appellant’s appeal against Miscellaneous Application 115/19. As I have already mentioned earlier, the subject matter of Miscellaneous Application 115/19 was an injunction against the appellants. There were overwhelming reasons to justify an injunction order being made after the visit to the locus in quo, if the Single Magistrate decided to issue the order. He did not do so because the appellants had agreed to move their properties and belongings out from the respondent’s land.

13. With regard to CN 464/19 the Magistrates’ Court is yet to dispose of that case. I have no doubt that the Court’s visit to the locus in quo would prove useful to the Court in determining the substantive issue in those proceedings.

14. As to the present appeal by the appellants against the decision in Miscellaneous Application 115/19, it is clearly one that cannot succeed and should be dismissed with costs.

ORDER: Appeal dismissed.
Costs to the respondent to be taxed if not agreed.

Dated the 2^nd day of October 2019

SIR JOHN MURIA
Chief Justice