Tutuana v Taubuki [1997] KIHC 11; HCLA 175.91 (14 May 1997)

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

HCLA 175/91

BETWEEN:

TUTANA & KAREKENANO
Appellants

AND:

TAUBUKI
Respondent

Tutana in person
Burennatu in place of Karekenano (Dec'd)
Taubuki (represented by issues of Taubuki
- Kobebe, Mikaere, Tiora, Tebeaue)

Date of Hearing: 12 May 1997

JUDGMENT

The appellants are appealing against the decision of the Makin Land Magistrates' Court in case no. 38/91.

In that case the appellants applied to the lower court for the boundary to be determined between their land, Tinanikunkarawa, and the adjoining land Tekateke. The appellants' complaint was that the end portion of their land had disappeared because of the boundary then in place.

The magistrates' only enquiry into the dispute was to ask the appellant Tutana two questions, viz:

"Q. Has your land been surveyed?

A. It has.

Q. You were present at the time?

A. Yes".

The magistrates then handed down the following decision:

"Finding:

This court found that a survey had been conducted for Tinanikunkarawa and Tekateke.

Decision:

Therefore since this matter had been surveyed there is nothing that this can do about it.

Things will remain the way they had been. You remain the way you used to be".

We find this decision to be totally unsatisfactory.

The magistrates did not state whether they even looked at the survey. There is a two-page survey plan on the file. We found one page to be so faded as to be indecipherable. The other page does not identify the boundary in dispute. Thus, even if the magistrates had looked at the survey it would have been of no assistance to them.

The fact that a survey has been carried out is certainly not the end of the matter. The magistrates should have examined the survey to see if the appellants' land could be identified on it. The magistrates should then have ascertained whether the existing boundary conformed with the boundary (if any) shown on the survey.

The minimum that was required of the magistrates was to give a full hearing to the parties and their witnesses, to visit the site to make their own observations of the boundary markings, and to prepare their own sketch plan in accordance with what they had seen and heard.

The magistrates did not do any of these things. As a result, the appellants were not given a fair hearing in that the Land Magistrates' Court completely failed to address the issue.

The appeal is allowed and the case is remitted to the Makin Land Magistrates' Court for retrial, observing the procedure we have just mentioned.

The respondents are advised that they have a right to appeal to the Court of Appeal within 6 weeks.

THE HON R B LUSSICK
Chief Justice
(14/05/97)

TEKAIE TENANORA
Magistrate
(14/05/97)

BETERO KAITANGARE
Magistrate
(14/05/97)