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Bauro v Tomi [1996] KIHC 81; HCLA 004.91 (25 July 1996)

IN THE HIGH COURT OF KIRIBATI
HELD AT MARAKEI
(BEFORE THE HON R LUSSICK C.J.)

HCLA 4/91

BETWEEN:

KATANNAKO BAURO
Appellant

AND:

NAEKE TOMI
Respondent

Appellant deceased
Respondent in person

JUDGMENT

On the 6 December 1990 the appellant lodged an application for leave to appeal a decision handed down on 19 May 1989. His reason for the delay was that after the decision he had to go to Tarawa Central Hospital and so gave the appeal papers to the presiding magistrate to file for him. It was later, while he was waiting for his case to be heard, that he learned that the appeal had never been filed.

The appellant has since died and is represented today by his son Karereiti. Because of the inordinate delay in this case coming before us we feel we ought to allow the application. Had it been heard within a reasonable time the appellant would have had the opportunity of personally placing his arguments before us. We therefore accept his explanation for the delay, which his son confirms, and allow him to appeal out of time.

The appellant's grounds of appeal are that the boundary fixed by the land magistrates' court does not reach the place where the original old boundary should be. Also, the pit belonging to Timon which used to be inside the appellant's land is no longer so because of the decision. Finally, the boundary fixed by the lower court is not in a straight line.

The land magistrates' court has made it most difficult for us to assess the merits of the grounds of appeal, or even to follow the evidence given in the lower court. This is because the magistrates have disregarded standing instructions to attach a sketchmap to their decision. We are thus unable to rule on the correctness or otherwise of the boundary determination.

The appeal will therefore be allowed. The case is to be remitted to the land magistrates' court for rehearing. That court is directed to attach a sketchmap to its decision showing what land or lands the boundaries are on or between.

Right of appeal explained.

THE HON R B LUSSICK
Chief Justice
(25/07/96)

TEKAIE TENANORA
Magistrate
(25/07/96)

BETERO KAITANGARE
Magistrate
(25/07/96)