Eneri v Tebenea [2010] KICA 14; Land Appeal 03 of 2010 (18 August 2010)

IN THE KIRIBATI COURT OF APPEAL
LAND JURISDICTION
HELD AT BETIO

Land Appeal 3 of 2010

BETWEEN:

TONGOI ENERI, TEAKAI TUNE AND KARAOIA KAOTAN
Appellants

AND:

MARIA TEBENEA
First Respondent

AND:

TIITO BIRA
Second Respondent

Before: Tompkins JA
Fisher JA
Williams JA

Counsel for Appellant: Mantaia Kaongotao
Counsel for Respondent: Banuera Berina

Date of Hearing: 14 August 2010
Date of Judgment: 18 August 2010

JUDGMENT OF THE COURT

Introduction

[1] The appellants appeal from a decision of the High Court sitting in its land jurisdiction on 29 April 2010. By that decision the court quashed the boundary decision of a Single Magistrate in CN156/06.

Background facts

[2] In 1997 the Magistrates' Court in CN50/97 determined the boundary from the lagoon to the ocean between Marenaua 708/i2 and Tabuarorae 708a.

[3] Ten years later in CN156/06 a Single Magistrate redrew the boundary. On appeal the High Court held that the way in which he went about his task was inconsistent with the earlier determination. That was demonstrated by the relationship between the boundary line and certain palm trees on the two properties. The High Court considered that in the earlier decision the boundary had run to one side of three palms while in the latest decision it ran to the other.

[4] The High Court therefore allowed the appeal, quashed the later decision, and returned the case to the Magistrates' Court for rehearing.

The Appeal

[5] In this Court Mr Kaongotao sought to demonstrate that the second boundary determination was in fact consistent with the first. He sought to do so by reference to relevant drawings by the two courts.

[6] The obstacle to that argument is that on a second appeal to this Court our jurisdiction is confined to questions of law: see s 10(1)(b) of the Court of Appeal Act 1980. Whether the second boundary determination was inconsistent with the first is squarely a question of fact. We have no jurisdiction to embark upon that issue.

Conclusion

[7] The appeal is dismissed with costs to the respondents to be agreed or fixed by the Registrar.

Tompkins JA
Fisher JA
Williams JA