Arawatau v Kairara [1996] KIHC 85; HCLA 022.93 (25 July 1996)

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

HCLA 22/93

BETWEEN:

ITINRAOI ARAWATAU
Appellant

AND:

ROBUTI KAIRARA
Respondent

Appellant in person
Respondent in person

JUDGMENT

The appellant appeals the boundary determination made by the land magistrates' court in case 18/90. His argument in that case was that the court should not determine the boundary at all since it had already been determined in a previous case. The court rejected that argument and proceeded to fix a boundary.

The appellant has referred us to a decision of the High Court, headed by Jones CJ, in HCLA 3/83. The present respondent was the appellant in that case and attempted to appeal a decision in case 2/62. The High Court refused to hear the appeal since the appellant was out of time. However, the High Court pointed out that case 2/62 did not set the boundary and in fact the High Court had no record of any case setting the boundary. The High Court went on to say that if there had been a previous case setting the boundary then the land magistrates' court could not alter it.

As it turns out, there was a previous case setting the boundary. This was case 3/60 to which the appellant has referred us. We have checked the record and it does, indeed, fix the boundary between the lands of the appellant and respondent. It seems that this was probably the case which the present respondent should have tried to appeal to the High Court.

The case number was not available to the lower court, but nevertheless it was told about the existence of the case and it therefore should have granted the appellant an adjournment so that he could produce the case.

Since the decision in case 3/60 has never been appealed, it still stands and the decision of the land magistrates' court in case 18/90 purporting to fix a different boundary is therefore invalid.

The appeal is allowed and the decision of the land magistrates' court in case 18/90 is set aside.

The respondent is ordered to pay the appellant's costs of $70-00 representing his airfare from Tarawa to Marakei and return within one month from today.

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

TEKAIE TENANORA
Magistrate
(25/07/96)

BETERO KAITANGARE
Magistrate
(25/07/96)