Bauro v Raoiroi [1996] KIHC 82; HCLA 032.91 (25 July 1996)

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

HCLA 32/91

BETWEEN:

KATANNAKO BAURO
Appellant

AND:

TUNTAKE RAOIROI
Respondent

HCLA 121/91

BETWEEN:

KATANNAKO BAURO
Appellant

AND:

TUNTAAKE RAOIROI
MANEATEATA RUOTAAKE
KAKOROA RUOTAAKE
Respondents

JUDGMENT

Although two separate appeals have been filed they both concern the same matter. The first file was opened upon a petition by the appellant, and the second after a notice of appeal was filed.

The appellant appeals against a boundary determination made by the land magistrates' court in case 13/90.

The appellant is now deceased and is represented today by his son Karereiti.

The grounds of appeal as filed are as follows:-

(1) The decision is biased since the magistrates seemed to favour plaintiff and his witnesses. For instance if plaintiff said the boundary lies this way or that way then the court agrees with him.

(2) The magistrates did not search well in that they did not summon the landowners from the western side of the road, since this land is only one plot of land and now the boundary is not the same with the west.

(3) they did not follow the land layout however they follow the layout of the pit when they determine my boundary from the east.

(4) It is known to the person digging that he dug within plaintiff land but quarter of his pit is within my land. However after their decision the whole pit was said to be within plaintiff land and there wasn't any part in my land.

In addition Karereiti contends that the boundary fixed by the lower court is not straight; also, that part of a house which was previously on the appellant's land is now the respondent's land.

We cannot find fault with the proceedings of the lower court. The magistrates went to the site and heard a great deal of evidence over the two days of the hearing. As complained of by the appellant in his first ground of appeal, the magistrates favoured the evidence given by the respondent's witnesses and set the boundary accordingly. There is nothing to say that the magistrates were not entitled to accept that evidence. We do not think that an appellate court should interfere with the findings of fact of the court of first instance unless, of course, those findings are incapable of supporting the decision, which was not the case here.

As regards ground of appeal no. 2, there is nowhere in the record that the appellant ever requested that the landowners from the western side of the road be called to give evidence. That ground therefore cannot be relied upon in this appeal.

As regard ground of appeal no. 4, this ground appears to be baseless since the sketchmap clearly shows part of the pit to be still within the appellant's land.

Similarly, Karereiti's contention that the boundary fixed by the magistrates was not straight is not borne out by the sketchmap.

Since the appellant has failed to show that the lower court was in error, the appeal cannot succeed.

The appeal is dismissed accordingly.

Right of appeal explained.

THE HON R B LUSSICK
Chief Justice
(25/07/96)

TEKAIE TENANORA
Magistrate
(25/07/96)

BETERO KAITANGARE
Magistrate
(25/07/96)