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Tooma v Takaria [1997] KIHC 37; HCLA 036.92 (9 June 1997)

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

HCLA 36/92

BETWEEN:

BOURA TOOMA
Appellant

AND:

AIRAN TAKARIA
Respondent

Appellant in person
Mr T Teiwaki for the Respondent

Date of Hearing: 9 June 1997

JUDGMENT

This is an appeal against the decision of the Abemama Land Magistrates' Court in case No. 10/92.

In that case the appellant applied to the lower court for approval of the sale by him of his land Tokamaea to the respondent. Neither the appellant nor the respondent appeared in the magistrates' court. Instead, they sent to the court a signed and witnessed agreement for the sale of the land together with an affidavit from each of them confirming the sale.

As far as the appellant knew, the matter before the magistrates' court was simply an unopposed application for approval of a transfer of land. However, a son of the appellant named Teang, who was not a party, attended the hearing and asked the magistrates not to approve the transfer because he and the other issue of the appellant would be left in hardship.

What the magistrates should have done in view of the unexpected change in the nature of the proceedings was to adjourn the case to enable the appellant to come to court to answer Teang's application. Instead, the magistrates accepted what Teang said and refused to approve the sale. That is the decision which is now under appeal.

The appellant relies on two grounds of appeal. We do not intend to consider the first ground because we confess that we do not know what it means. However, there is no question that the second ground has merit. That ground is in the following terms:

"(2) The magistrates erred in law in the fact of passing their judgment without listening to plaintiff's side".

It is a very fundamental principle that a court should hear both sides of a dispute before coming to a decision. The magistrates were in error in overlooking that principle.

It follows that the appeal must be allowed. The case is remitted to the magistrates' court for retrial and we direct that all interested parties are to be summoned to attend the hearing.

THE HON R B LUSSICK
Chief Justice
(09/06/97)

TEKAIE TENANORA
Magistrate
(09/06/97)

BETERO KAITANGARE
Magistrate
(09/06/97)