Kaboua v Bebeia [1996] KIHC 86; HCLA 022.90 (25 July 1996)

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

HCLA 22/90

BETWEEN:

TEKAETI KABOUA
Appellant

AND:

N. ATU BEBEIA
N. ANE TITIKU
Respondents

Mr D Lambourne for the Appellant
Respondents in person

JUDGMENT

This is an appeal against a boundary determination made by the land magistrates' court in case no. 23/89.

In the lower court N. Atu claimed a common boundary with Nei Ane to the south. The appellant disputes this. He alleges that his land lies to south of N. Atu's land.

The issue was the East-West boundary between N. Atu's land (58-mi) to the north and the appellant's land (58-bi) and N. Ane's land (58n) to south. The appellant claimed that his boundary runs further north than that claimed by N. Atu. Needless to day, the boundary claimed by the appellant gives him more land and the boundary claimed by N. Atu gives her more land.

The lower court favoured N. Atu's boundary because it coincided with the boundary indicated by Temang who represented N. Ane.

The boundary set by the magistrates places pit R1529 wholly within N. Atu's land. This conflicts with the pit book compiled by the Lands Commission which lists this pit as being within Kuria 58-bi, which is the appellant's land.

The record shows that the appellant referred the lower court to the pit book. However, there is nothing to indicate that the court took the matter any further. We have seen the entry in the pit book and this shows R1529 as being within the appellant's land. This seems to cast some doubt on the accuracy of the boundary fixed by the land magistrates' court.

Moreover, none of the parties agrees with the sketch prepared by the magistrates. N. Ane has given us a sketch showing her version of the layout of the lands, and N. Atu agrees with this. The appellant has also provided us with a sketch of his version of the layout of the lands. This sketch conflicts sharply with N. Ane's sketch. What is more, both sketches are different from that prepared by the lower court. When even the successful party in the magistrates' court does not agree with the way the magistrates have determined the boundaries, some doubt must be cast on the correctness of the decision.

In view of the fact that the sketch produced by the land magistrates' court cannot be reconciled with either the appellant's sketch or N. Ane's sketch, or with the pit book, we are of the view that the case ought to be sent back for retrial.

The appeal is therefore allowed and the decision of the land magistrates' court set aside. The case is remitted for retrial. We direct the magistrates to take into account the pit book entry for pit R1529 and also to clearly mark the extent of the appellant's boundary and N. Ane's boundary on the southern boundary of N. Atu's land.

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)