Tetabo v Teutai [1997] KIHC 13; HCLA 008.94 (15 May 1997)

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

HCLA 8/94

BETWEEN:

NENEAKI TETABO FOR
TIBAU AND OTHERS
Appellant

AND:

TEUTAI AND OTHERS
Respondents

Neneaki in person
Teutai in person with Toanuea and Kaututeuea

Date of Hearing: 12 May 1997

JUDGMENT

The respondents were the applicants to the Makin Land Magistrates' Court in case no. 4/89. They applied for a boundary determination in respect of the boundary between their land (Nanoa) and the land of the appellant Neneaki (Anrawa). The complaint before the magistrates was that the appellant was constructing a house within the boundary of the respondents' land.

The minutes of the proceedings in the lower court verge on the inadequate. The decision arrived at is as follows: "The magistrates confirmed the stones already erected on the land since the boundary settlement has been done before". Accompanying this decision is a very unhelpful sketch which does not show any compass points.

We can only take this decision to mean that the magistrates accepted that the existing boundary stones indicated the correct boundary and that therefore the complaint of the respondents had been made out.

The appellant paid an appeal fee but never filed an appeal as required by the Magistrates' Courts Rules (Rule 34). Instead there is a note appended to the Court minutes which reads: "Appeal lodged by Neneaki upon the ground that he was not very happy with the Court decision".

We would imagine that any unsuccessful party would not be very happy with the decision, but that does not constitute a valid ground of appeal. This case should not have been set down for hearing until the appellant had filed a proper notice of appeal in writing in the prescribed form stating clearly the ground of appeal and signed by him. Such ground of appeal should have defined the real question in controversy between the parties.

Nevertheless, despite the absence of the required documentation, we have considered the argument put forward by the appellant. His contention was that the respondents had moved the boundary stones so as to deprive him of his land. This is not a new argument. He put the same argument to the lower court but the magistrates did not believe him. Nothing has been put before us which would allow us to find that the magistrates were not entitled to accept the evidence of the respondent Teutai in preference to Neneaki's evidence.

We do not think that any interference with the decision of the Land Magistrates' Court is warranted. The appeal therefore fails and is dismissed.

The appellant is advised that he has a right to appeal to the Court of Appeal within 6 weeks.

THE HON R B LUSSICK
Chief Justice
(15/05/97)

TEKAIE TENANORA
Magistrate
(15/05/97)

BETERO KAITANGARE
Magistrate
(15/05/97)