[1979] KILR 76

HIGH COURT OF THE GILBERT ISLANDS

Civil Appeal No 44 of 1979

TEKINENE TETABO

v

BAURO TOKATAKE

(O'BRIEN QUINN C.J.)

Betio: 22nd June 1979

This case is reported on the point that as the matter in dispute was a matter relating to land, the case should have been tried by the Magistrates' Court (Lands) comprising five Magistrates and not three.

The facts are sufficiently set out in the judgment.

HELD: That the appeal would be allowed as the Magistrates' Court which heard the case on 1st May 1979 was not properly constituted under section 7(4) of the Magistrates' Courts Ordinance 1977 (No 17 of 1977) and the case was ordered to be retired by the Magistrates' Court properly constituted and the other observations made noted.

Authorities referred to:-

Magistrates' Courts Ordinance 1977 (No 17 of 1977) section 7(4) and 10.

O'BRIEN QUINN C.J.:-

This is an appeal against the decision of the Magistrates' Court for the Abemama Magisterial District given on 1st May 1979 in which the Magistrates' Court held that certain land known as Tebanga leased to the Catholic Church by the Plaintiff (Respondent) should remain with the Defendant (Appellant) although the lease rent had not been fully paid but the land known as Terianiboti should be returned to the Plaintiff (Respondent) by the Defendant.

2. The Defendant now appeals on the ground that while he is the Chairman of the Catholic Committee for Tebanga village and may, through an oversight, not have paid some of the rent, in respect of which he had asked the Plaintiff to give him time to pay, he nevertheless could not comply with the order of the Court as the land at Terianiboti is not under his control but is owned by the people of Abemama or by the Catholic Mission.

3. The points raised are interesting ones and I would add that other points should also be considered, namely, who is the lessee, Tekinene Tetabo, or the Catholic Mission or Catholic Committee at Tebanga, and also whether or not Bauro Tokatake is the true owner of both Tebanga and Terianiboti as they may his only in his right as a member of the Royal Family of Abemama and not be his to lease or sell, and whether or not the other members of the Royal Family are aware of these leases.

4. Further, and above all, this is a case dealing with land causes and matters and should not have been tried by the Magistrates' Court sitting with three Magistrates, as it was, but should have been heard by the Magistrates' Court (Lands), which is to say, by the Magistrates' Court comprising 5 Magistrates chosen from the Lands Magistrates Panel under the provisions of sections 7(4) and 10 of the Magistrates' Courts Ordinance 1917 (No 17 of 1977).

5. Accordingly, I must allow the appeal insofar as I hold that the Magistrates' Court as it was constituted for this case on 1st May 1979 at Abemama had no jurisdiction to hear the case and I set aside the decision of that court as being null and void and I order that the case be tried from the beginning by the Magistrates' Court (Lands) at Abemama as soon as possible and that my observations at paragraph 3 be closely examined by the Magistrates' Court (Lands) and that the Plaintiff should be careful to ascertain the correct party to sue.

6. The appeal is allowed, the decision set aside and a new trial ordered before the Magistrates' Court (Lands).