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Toom v Baraka [1997] KIHC 22; HCLA 124.90 (27 May 1997)

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

HCLA 124/90

BETWEEN:

N. KATETA TOOM
Appellant

AND:

N. TEBIKA BARAKA
N. RUITA RITANG
Respondents

Appellant in person
No appearance of Respondents

Date of Hearing: 27 May 1997

JUDGMENT

The appellant appeared in person. Neither respondent appeared. We are informed that the respondent Tebika Baraka is deceased.

We do not have any court record of the decision the appellant seeks to appeal. We note from a telegram on file that there is no such record. We do not know whether that means that minutes were never kept or that the record has been lost or destroyed.

It is clear from the file that the same appellant appealed against the decision of the Kuria Land Magistrates' Court in case KUR 61/87. The High Court dealt with that appeal on 8^th August 1988 in HCLA 135/87. The High Court allowed the appeal and sent the case back to the magistrates to distribute the estates amongst the descendants of Ten Taru and order the other beneficiaries to compensate Nei Kateta as indicated by the High Court in their decision.

It is the decision of the lower court on that retrial which the appellant now seeks to appeal. As we have mentioned, no record of that retrial exists.

In the circumstances, we do not see any option other than to again refer the matter back to the magistrates' court for retrial.

The appeal is therefore allowed and the previous decision of the magistrates' court on retrial is set aside. The case is remitted to the magistrates' court for retrial in accordance with the decision of the High Court in HCLA 135/87. The magistrates are directed to ensure that each party appears either personally, or by counsel, or by family representative. Proper minutes of the proceedings are to be kept.

The respondents are advised that they have a right to appeal to the Court of Appeal within 6 weeks.

THE HON R LUSSICK
Chief Justice
(27/05/97)

TEKAIE TENANORA
Magistrate
(27/05/97)

BETERO KAITANGARE
Magistrate
(27/05/97)