Ioera v Ngatau [1996] KIHC 26; HCLA 027.95 (1 July 1996)

IN THE HIGH COURT OF KIRIBATI
HELD AT MAIANA
(BEFORE THE HON R B LUSSICK C.J.)

HCLA 27/95

BETWEEN:

TEABIKE IOERA
Appellant

AND:

KATOKITAA NGATAU
Respondent

Mr B Berina for the Appellant
The Respondent in person

JUDGMENT

This is an appeal against a boundary determination made by the magistrates' court concerning the boundary between the appellant's land, which is part of Tekabikebike, and the respondent's land, which is part of Tengaongao.

As can be seen from the sketch plan with the record, the lower court found that the appellant's land stopped at the eastern side of Tebono and did not extend from the western side of Tebono as did the lands of Kawa and Takea, which are also part of Tekabikebike. This would mean that the respondent's land is bounded in the south by Kawa's land and not by the appellant's land.

The appellant's case, of course, is that her land continues on to extend from the western side of Tebono. According to the appellant, the western continuation of her land falls to the north of Kawa's land and thus it is her land and not Kawa's land which forms the southern boundary of the respondent's land.

The appellant relies on two grounds of appeal. Firstly, that the verdict was against the weight of evidence, and secondly that there is a presumption in Kiribati that boundaries run in straight lines and not in a curve, which is the shape of the boundary fixed by the magistrates.

In support of the first ground, counsel for the appellant points to the evidence of the respondent which admits that Tebono is inside the land called Tekabikebike. He argues that because the decision of the magistrates' court puts the respondent's land around to the west of Tebono, the latter parcel of land is thus inside two other lands, Tekabikebike and Tengaongao, instead of being inside just one land as stated by the respondent. Therefore, submits counsel for the appellant, the decision is against the weight of evidence.

We do not think that this necessarily follows. The respondent was referring to the two parts of Tekabikebike - i.e. the parts to the east and west of Tebono - when he said that Tebono was inside Tekabikebike. The context was that, although there are two parts to Tekabikebike, the appellant's land is only in one part because it stops at the eastern side of Tebono. The part of Tengaongao which borders the western side of Tebono, according to the respondent, had no connection with the plaintiff's land. We did not take the respondent to mean that Tebono was only inside one land and not two. We think it is obvious that he did not mention the other land - Tengaongao - in this context because his claim was that that land did not have a border with the appellant's land. Clearly, the magistrates' court also took this view.

In our opinion, the verdict was not against the weight of evidence. In fact it was strongly supported by the evidence.

The respondent's case was that there was only one part to the appellant's land and that the said land stopped at the eastern side of Tebono. There was no second part to the western side as claimed by the appellant. According to the respondent, it was his land to the west of Tebono which was claimed by the appellant as being the second part of her land.

The land register supports the respondent. The register shows Kawa and Takea, whose lands extend from the west of Tebono, as owning two parts of Tekabikebike but the appellant only one. Had the appellant also owned land to the west of Tebono then it is reasonable to infer that the register would have shown her as owning a second parcel.

We find that the respondent had a strong case and that the lower court was quite entitled to accept it in preference to that of the appellant.

As regards the appellant's second ground of appeal that there is a presumption in Kiribati that boundaries run in straight lines, we do not think that this ground has been made out. for one thing, there is no evidence to support it, nor was it argued in the lower court. For another, we are not convinced that the boundaries are not straight. It is true that the rough sketch plan with the hand written English version shows the boundaries to be curved. However, we do not have the original Kiribati record so we do not know what that shows, but the sketch with the typed version shows all the boundaries as being straight. Finally, even if the boundaries are curved it does follow from that fact alone that the magistrates were wrong.

Counsel for the appellant further submits that the lower court should have called the owners of the land to the west of Tebono to give evidence as to the ownership of the land in question. We do not agree with this. The onus was on the appellant, as plaintiff, to prove her case. If she thought that those owners would give evidence to support her then it was her place to call them, not the court's. The court is under no obligation to call evidence on its own motion and, ordinarily, will not do so.

We do not think the lower court fell into error and no reason has been established for us to interfere with its decision.

The appeal is dismissed accordingly.

THE HON R B LUSSICK
Chief Justice
(01/07/96)

TEKAIE TENANORA
Magistrate
(01/07/96)

BETERO KAITANGARE
Magistrate
(01/07/96)