Arawatau v Onikitaake [2006] KICA 25; Land Appeal 10 of 2006 (26 July 2006)

IN THE KIRIBATI COURT OF APPEAL
LAND JURISDICTION
HELD AT BETIO
REPUBLIC OF KIRIBATI

Land Appeal 10 of 2006

BETWEEN:

MAMARA ARAWATAU
TERIBA ARAWATAU
Appellants

AND:

ATANTEITI ONIKITAAKE
Respondent

Before: Hardie Boys JA
Tompkins JA
Fisher JA

Counsel for appellants: Banuera Berina
Counsel for respondent: Fleur Hamilton

Date of Hearing: 25 July 2006
Date of Judgment: 26 July 2006

JUDGMENT OF THE COURT

Introduction

1. In a decision of 13 June 2006 (High Court Land Appeal No. 86 of 2005) the High Court dismissed an appeal from a decision of the Single Magistrate in the Marakei Lands Court (CNMK 07/05) fixing the location of the boundary between properties of the appellant and the respondent.

Background

2. In 1956 in CN 5/56 Land Commissioner Turpin confirmed the boundary determination made in CN 50/55. The determination was recorded in a plan later referred to as the "Turpin plan". The plan identified the boundary by reference to various landmarks including a tree on the eastern side of the main road and a well and house on the western side.

3. Following continuing boundary disputes between the parties the High Court revisited the issue on 13 June 1985 (HCLA 93/84). The court took the Turpin map as its starting point. It continued in the following terms:

"... we have looked at the original record in case 50/56 which contain[s] a clear sketchmap and we see in that case the boundary to the west of the road stretches from the breadfruit tree which is on the eastern edge of the road in a line which passes immediately to the north of the well which itself is to the north of Taniera’s house wich used to be the sisters house and then in a straight line to the ocean which brings it between the houses further to the west of Taniera’s house. We attach a sketchmap to our judgment."

4. There then followed a sketch map which formed part of the judgment. The map was not to scale. The landmarks shown on it were confined to a breadfruit tree to the east of the road, a well and Taniera’s house next to the western side of the road, and three other houses further to the west.

5. The boundary disputes having continued, the High Court in HCLA 16/05 directed the Magistrates’ Court to "hear the parties as to their evidence regarding the location of the boundaries as set out in HCLA 93/84 which in turn confirms the boundary as fixed by Land Commissioner Turpin in Case No 5/56, the latter case itself confirms the boundary fixed in Case 50/55".

6. Consequent on that direction, the Magistrates’ Court made another boundary determination in CNMK 07/05. The Magistrate fixed the boundary by reference not only to the landmarks described and shown in the sketch map produced by the High Court in HCLA 93/84 but also the Turpin map produced in 1955.

7. The exercise conducted in CNMK 07/05 was not an easy one because some of the landmarks referred to in the two earlier maps had changed or disappeared. In comparison with the sketch map which had formed part of the judgment in HCLA 93/84, the sketch map produced by the Magistrate appeared to suggest (i) a considerably wider gap between the disputed boundary and Taniera’s house and (ii) two wells rather than one, the boundary being an appreciable distance to the north of one well and immediately to the south of the other. The decision was effectively in favour of the respondent.

8. From that decision the appellants appealed to the High Court. In an abbreviated judgment the High Court did not traverse the matters raised before us by Mr Berina but contented itself with the following:

"Single Magistrate Mantaia has heard the case and written a long and detailed judgment. It is clear he has taken great care to get the boundary right in accordance with the decision of our brother Betero and Jones CJ in 1984. We cannot believe that any other court could do better. The appellants’ complaints are matters of fact. The Single Magistrate has made no mistakes of fact in coming to his decision."

The appeal to this Court

9. In this court the appellants advanced essentially four grounds of appeal. All sought to draw a distinction between directions originally given by the High Court in HCLA 93/84, on the one hand, and the way in which the Single Magistrate had decided the case on the other.

10. In considering these grounds it is important to note that appeals can be brought to this Court solely on a question of law. However we accept that if any of Mr Berina’s grounds are made out they may well show that the Magistrate had acted inconsistently with the decision in HCLA 93/84. That in turn would represent a breach of the res judicata principle, resulting in an error of law in both the Magistrates’ Court and the High Court.

11. The first ground of appeal sought to draw a distinction between the High Court stipulation in HCLA 93/84 that one of the boundary markers was "immediately to the north of the well which itself is to the north of Taniera’s house", on the one hand, and the boundary set by the Single Magistrate "about six metres away from the well", on the other. Because "immediately" is a relative term involving no finite measurement we do not think it possible to say that it does not embrace a distance of six metres.

12. The second ground challenged the Single Magistrate’s approach that the location of "the sisters’ house" was unknown given that the High Court in HCLA 93/84 stated that Taniera’s house used to be the sisters’ house. The appellants go on to state that "the respondent asserted that the sisters’ house is further north of Taniera’s house". However close reading of the Single Magistrate’s decision shows that he did not accept, or act upon, the respondent’s assertion on that point.

13. The third ground was that the boundary established by the Single Magistrate used the wrong well, and was immediately to the south of it, rather than immediately to the north of a well as required by HCLA 93/84. We can understand why this argument has been advanced but it assumes that the well relied upon by the Magistrate was the one to the north. If he had adopted the well to the south as the reference point, the boundary would be to the north. And as we have earlier commented, "immediately" is incapable of measurement.

Conclusion

14. None of the grounds advanced by the appellants can be maintained. The appeal is dismissed.

15. The appellants must pay the respondents costs as agreed or fixed by the Registrar on taxation.

Hardie Boys JA
Tompkins JA
Fisher JA