Tinoka v Maere [1997] KICA 7; Land Appeal 15 of 1996 (25 March 1997)

IN THE COURT OF APPEAL OF KIRIBATI
LAND JURISDICTION

LAND APPEAL NO. 15 OF 1996

BETWEEN

TEBARINA TINOKA
Rep by TIANTAAKE TEBARINE
Appellant

AND

BAURO MAERE
Respondent

Date of Hearing: 21 March 1997
Delivery of Judgment: 25 March 1997

Mr D Lambourne for the Appellant

JUDGMENT OF THE COURT
(Gibbs V.P, Connolly and Ryan JJ.A)

This is an appeal against a decision of the High Court of Kiribati which dismissed an appeal by the appellant against a decision of the Magistrates’ Court at Marakei.

In the Magistrates’ Court the plaintiff Bauro Maere sought a determination of the boundary between his land Maungatabu 258i and the land of the defendant Maungatabu 258e. At the trial the parties, who were not legally represented, gave evidence. They were in agreement as to the boundary at the west, but disagreed as to the direction of the boundary from that point. The Magistrates’ Court defined the boundary by reference to two boundary stones, one of which was t the agreed boundary at the west, and by a cement beacon marked C32. They concluded also that certain stumps claimed by the plaintiff were within his land.

The effect of this determination is that the boundary line runs through a home belonging to Itaaka which we were informed was claimed by the defendant; it runs between two classrooms of the primary school, and most significantly it runs through a babai pit of the defendant.

The ground of appeal to the High Court as formulated by the defendant (appellant) was as follows:

"I disagree with the boundary at eats because the cement C32 placed by surveyors is not the boundary. Seeing the boundary now it slanted southward and our pits are inside Bauro’s land. The pit register says Tebarine’s pits are inside his land".

On the hearing of the appeal, the parties were not legally represented, the appellant is recorded as saying:

"I was dissatisfied with this man’s boundary because he encroached with our land. He said we have a pit inside his land but we don’t agree. Our pit is inside our land. That’s all".

It is clear from the ground of appeal and the submission by the appellant that she relied heavily on the point that her babai pit was within her land. The judgment of the High Court dismissing her appeal makes no mention of this, but observes that the appellant had not demonstrated how the land Magistrates’ court may have erred in coming to its decision, and that the court made certain findings of fact which the High Court would not be entitled to interfere with.

The amended notice of appeal to this Court asserts that the High Court erred in law by failing to take steps necessary during the hearing of the appeal to clarify the issues between the parties, particularly since neither party was legally represented. We do not think that the High Court failed in any duty to ascertain the issues between the parties, but it did fail to deal expressly with the main issue raised by the appellant. It makes no reference to the state of the pit register, and there is nothing to indicate that the court examined the entry in the pit register, as it did in another boundary determination case which it heard on the same day, namely HCLA 22/96.

We consider that we should follow the same course as was taken by the High Court in that case. Accordingly, the appeal is allowed, and the decisions of the High Court and of the land magistrates’ court are set aside. The case is remitted to the Magistrates’ Court for retrial. The magistrates are directed to take into account the pit book register for the pits of the appellant and of the respondent.

SIGNED BY
Gibbs V.P, Connolly and Ryan JJ.A