Tawita v Tiroba [1997] KIHC 16; HCLA 112.92 (22 May 1997)

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

HCLA 112/92

BETWEEN:

TERUBE TAWITA
Appellant

AND:

NARU TAKIRUA TIROBA
Respondent

Mr T Teiwaki for the Appellant
Mr D Lambourne for the Respondents

Date of Hearing: 22 May 1997

JUDGMENT

This is an appeal against the boundary determination made by the South Tarawa Land Magistrates' Court in case no. 564/92.

The appellant's grounds of appeal are as follows:

"1. The magistrates erred in law in not erecting a boundary parallel to the old boundary stone at the lagoon side.

2. The magistrate erred in law and in fact in erecting a boundary at the ocean side; the effect of which was placing my grandson's houses in Tiroba's land.
   
3. The boundary stone erected is in a way joining me less land than before".
   

The boundaries determined by the magistrates were between the appellant's land (Temaunga 612n) and Tiroba's land (Temaunga 612m) and between Tiroba's land and Naru's land (Temaunga 612u).

The appellant has produced a copy of the land register which shows that all of those lands are of equal size.

The appellant has also produced two sketches showing the difference between what she alleges are the original boundaries and the boundaries as they appeared after the magistrates' determination. The latter sketch shows that the appellant's land has been reduced to about half its original size and that the dwelling house belonging to the appellant's grandson now falls within the boundary of Tiroba's land.

It is impossible for us to tell from the very brief minutes of the hearing in the lower court whether the appellant is correct or not.

For one thing, the magistrates have ignored standing instructions in boundary determination cases to prepare a sketch plan based on their own observations of the boundaries and the evidence they have heard. Without a sketch plan we find the decision of the magistrates' court impossible to follow.

We also note that the appellant complained to the magistrates that the boundary of Tiroba's land on the ocean side intruded into the middle of her land. If the magistrates even considered this complaint they certainly made no record of their findings. There is no way to telling from their decision whether the complaint was true or not, nor did they give any reasons for fixing the boundary between the appellant's land and Tiroba's land the way they did.

Counsel for the respondent points out that the minutes do not reflect the extent of the evidence in that the evidence took half a day and there was also an inspection of the boundaries. If that is so, then the minutes are obviously not a proper record of the proceedings.

For the reasons given, we find the proceedings and decision of the South Tarawa Magistrates' Court to be unsatisfactory. In our view the appellant is entitled to succeed in her appeal.

Accordingly, the appeal is allowed and the decision of the Land Magistrates' Court is set aside. The case is remitted for retrial.

The magistrates' court is directed to:

1. Keep proper minutes of the proceedings, including any evidence given at the boundary inspection;
   
2. Prepare a sketch plan;
   
3. Address the issues raised by the appellant;
   
4. Note that all three lands are shown in the Land Register as being of equal size; and
   
5. Write a decision giving findings and reasons.
   

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

TEKAIE TENANORA
Magistrate

BITIARE EKERA
Magistrate