Utire v Temarewe [2024] KIHC 44; HCLA 2023-02302 (17 September 2024)

IN THE HIGH COURT OF KIRIBATI

HIGH COURT LAND APPEAL 2023-02302

BETWEEN: REITANIMAKIN UTIRE MTMM & OTHERS
Appellants

AND: TEMAREWE & ISSUES OF TAUKARAWA TEEKEA
Respondents

Date of Hearing: 27 August 2024
Date of Judgment: 17 September 2024

Appearances: Mr Mantaia Kaongotao for the Appellants
Mrs Kiata Ariera for the Respondents

JUDGMENT

A brief background of the case;

1. The case is an appeal from the Magistrates Court brought before this court by the Appellants against the decision of the Magistrates Court in Betlan 685 of 2019. The dispute concerns the Respondents' eviction from the land Tekainga 813k in Bairiki, which is still currently leased by the Government.
   
2. In Betlan 685/19, the Magistrates Court accepted the boundaries indicated by the Lands Surveyor. For background information, the Appellants summoned the Land Surveyor to point out the boundaries on the ground. The Appellants and their lawyer were absent when the surveyor indicated the boundaries. The Respondents did not argue against the boundaries indicated by the surveyor.
   
3. The Appellants were not happy with the decision of the Single Magistrate, hence the appeal. There are three grounds of appeal presented before this court as follows;
   

GROUND 1;

The Magistrate court erred in law and in fact in failing to take into consideration the previous or its own decision on the boundary determination concerning the disputed area;

4. The Appellants, through Counsel, submit that the court failed to consider the 2009 survey map and confirmed a new survey map for the boundary of both parties’ lands. Counsel further submits that the court cannot decide on a new survey map when the same court already determined one in 2009, which has not been challenged.
   
5. Conversely, Respondent’s Counsel submits that the Land Surveyor also considered the 2009 survey from CN 702/2009 before he pointed out the boundaries. On 3 July 2020, the hearing was adjourned to another date to allow the Surveyor to consider the case of CN 702 of 2009. Therefore, the boundaries pointed out by the Surveyor were not in conflict with the 2009 decision.
   
6. The Respondent, though Counsel, further submits that both the Appellants and their Counsel failed to attend the hearing several times, which was why the hearing was conducted in their absence. This was evident in the Single Magistrate’s judgment, which stated the chronological events of the case. The hearing started in 2019 and finally ended in July 2023. Several times the appellant’s case was struck because the appellant and/or their Counsel did not turn up.
   
7. Considering both submissions, we agree with the Respondent and the magistrate court decision. The minutes show that the land surveyor was given time to consider the 2009 survey and CN 702/2009 decision before indicating the boundaries.
   
8. This court also thoroughly reviewed the minutes of CN 702/09, which concerns the appellants' suit against the Director of lands. The Respondents were not parties to that proceeding because it only determined the accretion; it was not the boundary determination between the appellants and the respondents’ lands.
   
9. For the above reasons, ground one is not accepted.
   

GROUND 2;

The court erred in law and in fact in not giving the appellant the chance to make submissions to clarify the issues to be argued;

10. As mentioned above, the hearing was conducted without the Appellant and their lawyer. The Single Magistrate was unsatisfied with their absence and decided to hear the case without them. He stated in his judgment that the case had been adjourned several times before for the same reason that the Appellant and/or their lawyer failed to turn up to the hearing. Their case had been struck out and re-opened several times because of this reason. That was why the proceeding took almost four years to complete.
    
11. We agree with the magistrate court. It was not true that the Appellants were not given a chance to make submissions. This was not deliberate on the part of the magistrate court. The Appellants did not have the opportunity to present their case because they failed to attend the hearing without the magistrate court's satisfaction. For this reason, ground two must fail.
    

GROUND 3;

The court erred in law and in fact in relying on the survey map which contradicted the previous court decisions;

12. This court does not need to discuss this further as it has already touched on it in ground 1: the magistrate court was correct to proceed with the boundary determination, and the survey map presented in 2009 did not contradict the court's finding based on the reasons discussed and given in ground 1. Therefore, ground three is refused.
    

ORDER

For the above reasons,

1. The appeal is dismissed.
   
2. The decision in Betlan 685 of 2019 is upheld.
   
3. Cost to the Respondents to be taxed if not agreed.
   
4. The Respondent also requested their cost for not challenging the delay in filing the appeal. The appeal was submitted late, and there was no application for an extension of time, but the Respondent did not oppose the hearing of the appeal. Cost is also awarded in this regard, in the amount of $150.
   

THE HON TETIRO SEMILOTA MAATE MOANIBA
Chief Justice

TEETUA TEWERA RITETI MANINRAKA
Land Appeal Magistrate Land Appeal Magistrate