Tooma v Bareti [2007] KICA 3; Land Appeal 09 of 2007 (30 July 2007)

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

Land Appeal 9 of 2007

BETWEEN:

RAKUNOUA TOOMA
TIMEON TERIBA
ARINTETAAKE & OTHERS
Appellants

AND:

TEINGIA BARETI
Respondent

Before: Hardie Boys JA
Tompkins JA
Paterson JA

Stephen Earl for Appellant
Banuera Berina for Respondent

Date of Hearing: 27 July 2007
Date of Judgment: 30 July 2007

JUDGMENT OF THE COURT

INTRODUCTION

[1]. This is an appeal from a judgment of the High Court dismissing an appeal from a decision of the Single Magistrate determining a boundary.

[2]. Application was made for leave to appeal out of time, and leave was given.

BACKGROUND

[3]. Teingia Bareti (the respondent) applied to the Single Magistrate for a boundary determination on lands Manoku 750 and 750o at Ambo. Both parties were represented by counsel and witnesses were cross examined. Counsel gave closing submissions to the Single Magistrate.

[4]. The Single Magistrate gave a lengthy decision in CNMK 10/05. He noted that the appellants in this hearing owned 750o and the respondent 750i. There had been a determination by another Single Magistrate in 2002 and his decision had been appealed to the High Court. That Court had ordered that the boundaries of the lands be reviewed and it was this review which was being carried out in CNMK 10/05. The Single Magistrate noted there was a strong dispute between the parties. He confirmed boundaries which are described in some detail in his decision.

[5]. The appellants appealed to the High Court (HCLA 30/2006). At the end of the hearing the Court gave an ex tempore judgment. It noted that there were three grounds of appeal, which were all complaints about matters of fact. In summary the real point of complaint was that a straight line boundary drawn by the Single Magistrate was not the shortest straight line from road to ocean. The slant reduced the size of the appellant’s land. While agreeing that the slant of the boundary was unusual, the Court concluded that did not make the decision obviously wrong as contended. The judgment concluded:

The Single Magistrate has decided matters of fact. He made no obvious mistake. The appeal must be dismissed.

THE APPEAL

[6]. The grounds of appeal were:

(a). The High Court erred in not reconsidering the Single Magistrate’s factual findings.

(b). The High Court erred in finding that it should only consider mistakes of facts that are obviously wrong.

[7]. Mr Earl in his submissions extended the grounds but in the main these extensions were a variation of a theme: the Single Magistrate had erred in his factual findings and the High Court had erred in law by accepting the findings because there were no obvious mistakes.

[8]. Mr Berina for the respondent submitted the issues involved were factual in nature. It involves the parties pointing out to the Single Magistrate where the boundaries of the land ought to run. In this case the findings of fact which are now said to be wrong were not raised in the High Court. It was submitted that the appellants are seeking to find a way of formulating an appeal on a point of law to this Court, relying on matters of facts which were not argued before the High Court.

[9]. The grounds of appeal in the High Court, which were amended a few days before the hearing were:

(a). The Single Magistrate erred in law and in fact in erecting boundary stones the effect of which considerably reducing the size of the appellant’s land Manoku 750o when the boundary run not in a straight line but into appellant’s land thereby resulting in appellant’s land at the ocean side became very narrow in size.

(b). The Single Magistrate erred in law and in fact in erecting the boundary the effect of which the ocean side of Manoku 750i almost adjoins with another land Manoku 750u.

(c). The Single Magistrate erred in law and in fact in erecting boundary stones based on the location of the babai pit R 3769 and R 3771 according to the babai pit Register when the babai pit location was not significant especially when the location of the babai pit was wrong.

DISCUSSION

[10]. There is substance in Mr Berina’s submission that the grounds argued in this Court differed somewhat from the grounds raised in the High Court. As this is an appeal from the High Court’s appellate jurisdiction it must be on a point of law. This Court is not concerned with factual errors. However, it would be an error of law if the High Court applied the wrong test in deciding whether the Single Magistrate erred in his factual assessment. In other words did the High Court when it said that "He made no obvious mistake" apply the wrong test, and thereby commit an error of law.

[11]. Appellate Courts are slow to differ from a court at first instance, particularly if credibility is concerned, or there has been real evidence given which requires an appreciation of physical features, or where the decision maker has expertise in the area and is required to exercise that expertise.

[12]. It is obvious from the transcript of the hearing before the Single Magistrate that there was a strong dispute between the parties. He also made an assessment that the applicant was "more confident in pointing at his boundary". He obviously made an assessment of the worth of the evidence given by the various witnesses. An appellate court should not lightly override a first instance judge’s assessment of the evidence given at trial – particularly so in this case where the evidence was relatively lengthy and the witnesses were cross examined.

[13]. There are two other reasons why the High Court should be slow to intervene in a case such as this. First, the decision involved a physical inspection which the High Court did not have the benefit of. Secondly, the Single Magistrate has a background in boundary determinations and local conditions. The office is especially equipped to adjudicate on such disputes.

[14]. In the circumstances this Court is of the view that an error of law has not been demonstrated in this case. Having listened to counsel and having been directed to portions of the evidence the High Court was unable to detect an obvious mistake. This is merely saying that given the Single Magistrate’s role in assessing the witnesses he heard, viewing the physical location and applying his experience, the Court was unable to say that the Single Magistrate erred.

[15]. This Court finds no error of law. It has no role on such an appeal to consider possible factual errors.

RESULT

[16]. The appeal is dismissed.

COSTS

[17]. The respondent is entitled to costs. If the parties are unable to agree they are to be fixed by the registrar.

Hardie Boys JA
Tompkins JA
Paterson JA