Tebeia v Motire [2024] KIHC 52; HCLA 55 of 2015 (5 November 2024)

IN THE HIGH COURT OF KIRIBATI

HIGH COURT LAND APPEAL 55 of 2015

BETWEEN: WATETI TEBEIA

Appellant

AND: BIARUA MOTIRE MTMM
Respondents

Date of Hearing: 4 October 2024
Date of Judgment: 5 November 2024

Appearances: Ms Taoing Taoaba for the Appellant
Mr Mantaia Kaongotao for the Respondents (not present)

J U D G M E N T

Introduction:

1. The appeal is against the decision of the Magistrate’s court in BD 23/2014 in a boundary determination over the Respondent’s land, Temoaniwae 583m. Both parties owned adjoining lands. The court's decision was made in the absence of the Appellant, hence the appeal.
   

Appeal Ground

2. One ground of appeal was filed that the court erred in law in failing to afford a chance to cross-examine one of the witnesses, who was the Lands Surveyor.
   

Parties’ Position and Court Analysis

3. The Appellant submitted that the Surveyor gave evidence regarding the location of the boundary marks on the land. The Appellant was not present. The case was adjourned to another time to allow the Appellant to cross-examine him on his evidence, but the Surveyor did not turn up. The case was adjourned again to another date, 7 August 2015, at 11 am, and the Respondents were tasked with serving the Appellant with the summon. Instead, the court had the hearing on a different date, 14 September 2015. The Appellant was not present. The Appellant argued that they should be allowed to cross-examine the Surveyor.
   
4. When we listed this case for the second time for hearing, the Respondent was not present. However, this court considered their position through Counsel’s written submission. In their submission, they stated that the Appellants knew of the hearing dates on 7 August and 14 September, and even though they were served for both times, they failed to turn up.
   
5. In the case of Bwebwentekai v Reue [2017] KICA 2; Land Appeal 1 of 2017, the Court of Appeal dismissed the Appellant’s appeal when the minutes showed that they were served to appear before the magistrate, but they did not attend the hearing.
   
6. The same grounds of appeal were considered in the above Court of Appeal case. The situation also applies where the Appellants were served to attend the hearing below to cross-examine the Surveyor on the marks he pointed out on the ground, but they did not turn up. This is shown in the minutes of the proceeding. It was their fault that they missed the hearing. There was also no indication of what they lost when they could not cross-examine the Surveyor.
   

ORDER

7. For the above reasons, we agree with the Respondent and the magistrate court that the Appellant knew of the hearing date on 14 September, but they did not turn up.
   
8. The appeal is dismissed with cost to the Respondent, to be agreed or taxed.
   

THE HON. TETIRO SEMILOTA MAATE MOANIBA

CHIEF JUSTICE

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TITAN TOAKAI RETETA RIMON

LAND APPEAL MAGISTRATE LAND APPEAL MAGISTRATE