IN THE KIRIBATI COURT OF APPEAL
LAND JURISDICTION
HELD AT BETIO
REPUBLIC OF KIRIBATI
Land Appeal No. 1 of 2013

BETWEEN

NEI TOKA TATAUA
APPELLANT

AND

ATTORNEY-GENERAL FOR DIRECTOR OF LANDS
RESPONDENT

Before: Paterson JA 
Blanchard JA Handley JA 
Counsel: Banuerra Berina for appellant Monoo Mweretaka for respondent
Date of Hearing: 20 August 2013
Date of Judgment: 23 August 2013

JUDGMENT OF THE COURT

1.	The appellant brought a proceeding asking for a determination of the position of a boundary of her block of land which is leased to the Government for use as part of the international airport. She and the Lands Office differ on whether the boundary in question is in the middle of the runway, as the Lands Office contends, or whether the boundary is within the area on which the terminal building is located, as the appellant says.
2.	The lease to the Government was of 0.110 acres – a little more than a tenth of an acre. It commenced in 1975 for a term of 99 years at a rental of $44 per annum reviewable each five years.

3.	Important factors to be resolved were where the lagoon began in 1975 and the effect of any subsequent reclamation or accretion. It is said by the Government that the area on which the terminal sits was a tidal area in 1975.

4.	The decision of the Single Magistrate was favourable to the appellant. The Attorney-General appealed to the High Court on 
28 October 2011 – well out of time. The Attorney-General therefore sought leave for the appeal and at the same time applied to the High Court for leave to adduce further evidence, namely some aerial photographs of the airport land taken in 1969 and 2010.

5.	In a judgment delivered on 21 June 2012 the High Court granted the necessary extension of time. Turning then to the question of the further evidence, which is the only matter with which this present appeal is concerned, the High Court referred to Order 60 r.15 of the High Court (Civil Procedure) Rules which says that it is not open as of right to any party to an appeal to adduce new evidence in support of that party's original case but allows the appeal court, for the furtherance of justice, where it thinks fit, to allow or require new evidence to be adduced. There is under the Rule a discretion to be exercised by the Court.

6.	The High Court referred to the well-established principles governing when leave will be given, which were articulated by Denning LJ in Ladd v Marshall [1954] 1 WLR 1489 in the following way:

"To justify the reception of fresh evidence or a new trial, three conditions must be fulfilled: first, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; secondly, the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive; thirdly, the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, though it need not be incontrovertible".

7.	The High Court said that the photographs had been recently obtained from SOPAC in Fiji. We understand from counsel that SOPAC is a regional organisation based in Fiji amongst whose functions is land mapping carried out by aerial photography.

8.	Addressing the first condition stated by Denning LJ the High Court said that it accepted that the photographs were with SOPAC in Fiji at the time of the trial in the Magistrates' Court. (By this it may have meant only the 1969 photographs as the later photographs may have been taken after that trial. But it is the earlier photographs which are significant as without them there is nothing with which to make a comparison). It said that they were not readily available at that time, although it also noted that there was no evidence that any attempt had been made to obtain photographs of the area from SOPAC.

9.	Moving to the second condition, the Court said that the photographic evidence 

"may probably have an important effect on the outcome of the case, given the fact that the land in question houses the country's only international airport, evidence in the nature of that which is now discovered and sought to be adduced, should be allowed to be led even at this stage of the case". 

The Court felt this was in the interest of achieving a just resolution to the dispute between the parties.

10.	The Court apparently, and understandably in view of the nature of the evidence, did not think it necessary to address the third condition (of credibility). It exercised its discretion in favour of allowing the photographs to be adduced.

11.	In this Court, Mr Berina, for the appellant submitted that there were no special circumstances allowing the High Court to exercise its discretion as it did. Counsel said that the present respondent had failed completely to show that the photographs could not have been obtained even if reasonable diligence had been exercised. No explanation had been given of how it came about that the photographs had eventually been received and why they had not been obtained earlier. A very convincing explanation was required before "new" evidence was admitted. Here no attempt had been made to explain.

12.	The appellant also argued that the relevance of the photographs had not been established, given that they depicted the land in 1969 but the lease had begun in 1975. They could not be "highly relevant". Nor had the present respondent shown that it would be an affront to justice not to allow in the photographs. They would show that the land area had grown in size from 1969 to 2010, but that fact had already been established during the trial and taken into account by the Single Magistrate.

13.	For the respondent, Mr Mweretaka submitted that the photographs were the property of SOPAC at the time of the trial and were not known to exist. They were discovered – in circumstances not explained in the evidence – only after that time. They would provide an actual image of the land and in particular the high water mark before and after the lease agreement was made. In the view of the Land Surveyor of the Survey and Mapping Department of the Ministry of Environment, Land and Agricultural Development they will prove that the area which was the subject matter of the case in the Magistrates' Court "was once the sea and somehow became land over time". Counsel said that if the Government were not given an opportunity of using the photographs an injustice would be done.

14.	We should say at once that we recognise that this is an appeal from an exercise of discretion by the High Court. But it is a discretion to be exercised in accordance with the established principles. If the party seeking admission of new evidence is unable to satisfy the three conditions stated by Denning LJ in Ladd v Marshall the evidence cannot be admitted unless it would be an affront to justice to refuse the application; in other words, that the interests of justice require its admission, which is a stringent test.

15.	The justification for setting the bar so high for the applicant is that litigation should not be prolonged or renewed. Parties should fully research their evidence in advance of trial and put all relevant testimony and materials before the trial Court. If they fail to do so, they should not be encouraged to think that other than in very exceptional circumstances they will be permitted to run their cases again with further evidence before another judge.

16.	In this case, although the "new" evidence was in Fiji and not in Kiribati, we consider that it was available to the respondent at the time of the trial if reasonable diligence had been used. About two years elapsed between the issue of the appellant's proceeding and the judgment of the Single Magistrate. The Lands Office cannot have been unaware during that period that SOPAC existed and had undertaken mapping activities in Kiribati. An inquiry could easily have been made to ascertain whether it was holding material relating to the area of the airport. Nothing was done in this regard. We note that there was apparently no difficulty in obtaining the photographs from SOPAC in 2010.

17.	At the hearing we asked counsel to make better copies of the photographs available to us and we have considered them. We are not convinced that they would have an important influence on the result of the case if admitted in evidence. It is true that they might assist in establishing the physical condition of the area in dispute in 1975 (assuming it had not materially changed after 1969) but they would throw no light on the equally crucial issue of the manner in which any subsequent change occurred – whether it was by reclamation or accretion.

18.	With respect to the High Court, the consideration which it mentioned when addressing the second of Denning LJ's conditions, the fact that the land houses the international airport, had nothing to do with whether the photographs might be an important influence in the case.

19.	Thus neither the first nor the second of the conditions for the exercise of the High Court's discretion on the respondent's application was satisfied. The Court ought not to have granted the application unless it could properly consider that refusal of leave would be an affront to justice.

20.	Even allowing for the importance to the community of the airport facility we do not consider that to be the position. We bear in mind that the High Court heard the application some two years after the decision of the Magistrate. The appellant was entitled to think that the proceeding was at an end and that it would not be confronted by a renewal of the litigation with different evidence. There has also been nothing put before the Court by the respondent to make a case that the use or development of the airport will be seriously hampered if the respondent is unable without the photographs to win its appeal to the High Court, assuming that to be the position. And should that occur the Government is not lacking the ability to overcome any problem by legislation if agreement cannot be reached.

21.	The appeal is allowed and the decision of the High Court admitting the evidence is set aside. The respondent must pay the appellant's costs in this Court and disbursements as fixed by the Registrar. If there is any issue about costs in the High Court they should be determined by that Court.

Paterson JA

Blanchard JA

Handley JA