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Maitinnara v Mclaughlin [2025] KIHC 67; Land Appeal 12 of 2017 (15 October 2025)

THE HIGH COURT OF KIRIBATI

LAND JURISDICTION

High Court Land Appeal 12 OF 2017

Between Botika Maitinnara mtmm

Appellant

And Daniel Itibita Mclaughlin

Respondent

Date of Hearing 16 September 2025

Date Judgment 15 October 2025

Appearances Mr Titabu Tabane for Appellant

Mrs Kiata Ariera for Respondent

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J U D G M E N T

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Case Background

1. The appeal is against the decision of the magistrate court in BD 44/14 dated January 9, 2017. To avoid any confusion, the case number listed on the two Amended Notices of Appeal filed on July 7 and July 30 of this year was BD 124/21. This is incorrect, as it should be BD 44/14.
   
2. In BD 44/14, the issue was the boundary determination of the lands Terereua 819n/2 owned by the applicant in the lower court, now respondent, and Terereua 819b/1 owned by the respondent, now appellant. The magistrate court decided in the absence of the respondent, now appellant, and confirmed the boundaries shown on the diagram or sketch map by the land surveyor.
   

Grounds of Appeal

3. The appellant is not happy with this decision and filed an appeal on the following six grounds as quoted below;
   

Ground 1- The Court erred in law in giving its decision in this case without giving the defendant a chance to call evidence and therefore in breach of the principle of natural justice.

Ground 2- That the Court erred in law in not complying with Rules 28 and 29 of the Magistrate Court Ordinance requiring the Court to exercise its discretion to appoint a representative of the Appellants to be present, in the absence of Counsel for the Appellants, to get their side of the case, before proceeding to make a decision.

Ground 3- That the Court similarly erred in law in not complying with Rule 29 of the Magistrate Court Ordinance by relying mostly on the evidence of the Land Surveyor, without giving the Appellants, and her witnesses, the opportunity to state to the Court their land boundary, as against the evidence of the Land Surveyor.

Ground 4- That the Court erred in law and in fact by finding that the Appellants, not objecting to the Land Surveyor’s assessment of the boundary in dispute, impliedly waived their right to object, thus agreeing to that assessment.

Ground 5- That the Court erred in fact in first assuming that most of the lands on Betio had their respective boundaries been surveyed, as Betio is a designated area, and that their respective boundaries had already been determined in court, when there is no evidence to support that.

Ground 6- That the Court erred in law and in fact that by applying the general assumption as stated in ground 5, the boundaries between the Appellant and the Respondent had already been fixed and decided as compiled by the surveyors and presented to Court without evidence supporting that finding.

Appellant’s Case

4. The appellant was absent from the hearing, but the court proceeded despite their absence.
   
5. The appellants argue that the court should have either adjourned the case or appointed their representative to present their position in accordance with Rule 28 of the Magistrate Court Rules. Natural justice was violated when the court went ahead without them.
   
6. Justice is to be seen done by giving parties a chance to present their case. Natural justice involves providing opportunities for all interested parties to participate on each side. This was demonstrated in case law Rarakita Rewi v AG iro Driector of lands [2003] KIHC 1.
   
7. They also argue that there was no evidence supporting the finding that the lands on Betio had been surveyed.
   

Respondent’s position.

8. In response, the respondents state that the appellants in BD 44/14 were represented by their counsel, who appeared at most of the hearings. The hearing took more than three years to complete; therefore, the court proceeded without them, especially since they did not provide any reason for their absence.
   
9. The appellant's counsel has had the opportunity to cross-examine the land surveyor regarding his testimony and the cadastral map showing the boundaries. The appellants were given a chance to present evidence, but they did not appear at that time. They also did not follow up on their case or file their closing submissions. Natural justice can only be violated if they were not summoned or not informed of the hearing date. In this case, the appellant’s counsel and the respondent scheduled the court hearing, but the appellant’s counsel failed to appear. The respondent's counsel argued that even if they missed their chance to present their case, they had the opportunity during cross-examination of the surveyor. The magistrate court has the discretion to proceed without them, given the length of the case.
   
10. The cadastral map was the only evidence presented and introduced by the land surveyor, and the court accepted it because it was the only evidence showing that the two land boundaries had already been established. The respondent’s land was leased by the government, which is why the land surveyor was called to show the boundary marks.
    
11. The land surveyor fulfilled his duty by marking the boundaries between the appellant's land and the respondent's. The boundaries were not new; they have existed since the colonial era and continue to do so. The current landowners are not the original owners; they are bona fide purchasers, and the boundaries had already been established when they purchased these lands.
    

Court’s View

12. In our view, after thoroughly reviewing the Magistrates' records, we agree with the Respondent's counsel that the Appellant was represented by her counsel throughout the proceedings, except for the two times when her counsel failed to appear without any reason.
    
13. Also, from the court minutes, we found that on May 19, 2016, the land surveyor appeared and informed the court that they had surveyed the land and presented a diagram or sketch map. Counsel for the appellant began her cross-examination of the land surveyor. The case was adjourned to June 27, 2016, during which the appellant’s counsel continued her cross-examination. The matter was adjourned again to another date; all parties were present, and the appellant’s counsel continued cross-examining the surveyor. Then, the respondent’s counsel began her cross-examination of the surveyor. Both counsels requested copies of the lease agreement and court minutes for the diagram, leading to another adjournment.
    
14. The minutes showed that the case was adjourned multiple times to allow the land surveyor to present the necessary documents. On December 20, 2016, a different surveyor appeared and requested an adjournment to familiarize himself with the case before cross-examination. At that time, the appellant’s counsel did not attend the hearing, so the court granted an adjournment. On January 04, 2017, the case resumed with the surveyor present and only the respondent’s counsel. The counsel for the appellant did not appear, which was their chance to cross-examine the surveyor again if they had further questions. The respondent concluded their case, as they agreed with the boundary shown on the map provided by the land surveyor. The respondent's counsel asked the magistrate court not to give additional time to the appellant, arguing they missed their chance without reason, and the court approved this request.
    
15. Based on the record above, we agree with the respondent’s counsel that the appellant was clearly represented by a qualified lawyer. We also acknowledge that the appellant and her counsel failed to appear twice.
    
16. The Single Magistrate had the discretion to proceed without them, especially when no reason was given for missing the hearings. The magistrate court also considered the duration, which exceeded three years, in an effort to resolve this case.
    
17. We also agree with the respondent’s counsel that the appellant had their opportunity to present their case through their cross-examination of the surveyor when he showed the boundaries. The minutes of their cross-examination did not indicate that their boundaries, different from the surveyor’s sketch or map, had also been fixed by the court. The court was entitled to rely on the only evidence provided by the land surveyor because that was the sole evidence that the boundary had been established.
    

Outcome

18. For reasons stated above, the appeal is dismissed.
    
19. The magistrate court decision in BD 44/14 is affirmed.
    
20. Cost is awarded to the Respondent to be taxed if not agreed.
    

Order accordingly.

HON TETIRO SEMILOTA MAATE MOANIBA

Chief Justice

TAIBO TEBAOBAO TABAKITOA TEMOKOU

Land Appeal Magistrate Land Appeal Magistrate