Tekee v Karawaiti [2023] KIHC 57; Land Appeal 54 of 2017 (12 May 2023)

IN THE HIGH COURT OF KIRIBATI TE KABOWI AE RIETATA I KIRIBATI

High Court Land Appeal 54 of 2017

BETWEEN	KATAOTIKA TEKEE MTMM Appellants
AND	KOIN KARAWAITI MTMM Respondents

Hearing:	25 August 2021
Appearances:	Ms Botika Maitinnara for Appellants Ms Batitea Tekanito for Respondents
Judgment:	12 May 2023

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JUDGMENT
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1. The appeal is against the ruling of the South Tarawa Magistrates Court in BD 72/2015, the ruling of the court below was delivered on 18 November 2017.
2. The Appellants through their lawyer, Ms Maitinnara, filed only one ground of appeal namely, ‘the Single Magistrate erred in law and in fact in ruling that the boundaries are to be erected without giving the appellants time to call their witness as this was an order of the court in a previous hearing. This reasoning cannot be supported by the court minutes or the records of the proceedings.’
3. For this sole ground of appeal, Ms Maitinnara filed no affidavit to support this ground so this panel will only consider the ground of appeal with respect to the records of the proceedings in the court below.
4. First of all, it is vital to consider the ruling of the Magistrates court in BD 72/2015. The Single Magistrate ruled that,

“...you must be well aware that the court direct3ed at the last hearing that should Kataotika is not ready for cross examination the 2^nd witness must be available as we can fix another date to cross examine him later.

But now you are not ready again.

I will accept what counsel for the plaintiffs said, we have to proceed to erecting the boundaries without the defendant’s evidence.

We will come back here to erect boundary marks after the Court studies its record.”

5. The ruling clearly shows that the Single Magistrate proceeded to erect boundary marks without the cross examination of the Appellant’s witness, Kataotika Tekee, because of the failure of the Appellants’ witnesses to be present during the proceeding to adduce evidence. The basis of the decision of the Magistrate as shown in the above ruling was based on her previous ruling.
6. Ms Maitinnara for the Appellants (Defendants in the court below) submitted that the examination in chief of Kataotika Tekee was done but the cross examination has not yet been carried out due to the witness’ sickness as shown in the records in which Bererita who appeared before the Single Magistrate on 18 November 2017 on behalf of Ms Maitinnara and the Appellants apologized to the court that the witness Kataotika Tekee was not well.
7. In response, Ms Tekanito, for the Respondents (Plaintiffs in the court below) in the court below argued that the court should continue with respect to its previous ruling that the proceeding should continue if the Appellants failed to provide its witnesses.
8. The Single Magistrate ruled in favor of the Respondents deciding that it will proceed to erect boundary marks given that the Appellants’ witnesses failed to turn up.
9. Ms Maitinnara, emphasized that the ruling disregards their first witness’ evidence in chief and that it is wrong under law to continue without hearing the evidence of the Respondents. Ms Tekanito, on the other hand, strongly opposed the ground of appeal and based her opposition on the fact that the Single Magistrate have ruled earlier that they will erect boundary marks if the Appellants’ witnesses failed to turn up on the 18 of November 2017 hearing.
10. This panel finds that the previous hearing date before the appealed ruling of 18 November 2017 was on 19 July 2017. There was no ruling as claimed by Ms Tekanito except that the court adjourned the case to on site and for the Appellants’ witness Kataotika Tekee to be cross examined. The reason set out by the Single Magistrate stating that the previous ruling set out that the court will proceed to erect boundary marks if the Appellants’ witness failed to appear cannot stand.
11. This court finds the decision of the Single Magistrate not to give time to the Appellants’ witnesses to adduce evidence to be wrong under law and invalid. It is clear from the records that Bererita represented the interests of the Appellants on 18 November 2017 advising the court that Ms Maitinnara could not proceed as their witness Kataotika Tekee was not feeling well. Instead, the Magistrate continued to rule that they would continue to erect the boundary marks without the evidence of the Appellants.
12. A fair hearing should always ensure that both parties adduce evidence for the court to consider and decide based on the evidence. Our Evidence law is also very clear that the witnesses should be examined in chief, cross examined and re-examined. The Magistrate’s ruling therefore cannot stand.
13. Both counsels argued about a new hearing to be considered. We have gone through the proceeding’s records and do not see why a rehearing should be done. We reject the request for a rehearing.
14. For the reasons set out earlier, we grant the appeal against the ruling made by the Single Magistrate in BD 72/2015 made on 18 November 2017. The following orders are made.
    
15. Orders of this court:

1. The appeal is granted;
2. The ruling of the Magistrates Court of South Tarawa in BD 72/2015 made on 18 November 2017 is quashed;

100. The continuation of the boundary determination in BD 72/2015 should be listed as soon as the Chief Magistrate officially receive this judgment and appoint one of the senior and experienced Magistrates to continue this boundary case;

4. Costs is awarded to the Appellants to be taxed if not agreed.
   

MR ABUERA URUAABA,
COMMISSIONER OF THE HIGH COURT

HER WORSHIP MARIA TERETIA KAIBOIA
LAND APPEAL MAGISTRATE

HER WORSHIP AMINA URIAM
LAND APPEAL MAGISTRATE