Ubaitoi v Tawita [1997] KIHC 39; HCLA 244.89 (9 June 1997)

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

HCLA 244/89

BETWEEN:

TEBETA UBAITOI
Appellant

AND:

TETAKE TAWITA
Respondent

Mr B Berina for the Appellant
Mr T Teiwaki for the Respondent

HCLA 258/89

BETWEEN:

N. TETAAKE TAWITA
Appellant

AND:

IOANE KORU FOR
BATIKARE IOANE
Respondent

Mr T Teiwaki for the Appellant

HCLA 109/92

BETWEEN:

TETAKE TAWITA
Appellant

AND:

TEBETA TITO
Respondent

Mr T Teiwaki for the Appellant
Mr B Berina for the Respondent

Date of Hearing: 9 June 1997

JUDGMENT

We are told that all 3 appeals are related but that the only outstanding issue is contained in HCLA 109/92.

Mr Berina, counsel for the appellant in HCLA 244/89, applies to withdraw that appeal and the appeal is withdrawn and dismissed accordingly.

Mr Teiwaki, counsel for the appellant in HCLA 258/89, applies to withdraw that appeal and that appeal is also withdrawn and dismissed accordingly.

HCLA 109/92 is an appeal against a boundary determination made by the Abemama Land Magistrates' Court in case 39/92. That case was a retrial ordered by the High Court in HCLA 46/91.

In HCLA 46/91 the High Court remitted the case to the magistrates' court with the following directions:

"(a) the Court should call the vendor of the land concerned to determine what portion of land he sold to each side;

(b) if they find, as it is alleged, that the respondent was sold ¹/₃ and appellant ²/₃ then they should divide the land accordingly; and

(c) they should determine the boundary in light of the foregoing and having regard to the boundary on the other side of the respondent's house plot, resolving disputes, if any, on that side of the land".

In the present appeal, the appellant relies on the following grounds:

"(1) the Magistrates erred in law in accepting the letter of the vendor as part of evidence on the ground that I could not ask questions in respect of points raised in the said letter.

(2) the order was for the vendor to be called as Witness but that was not complied with - therefore the Magistrates erred in that respect".

The respondent concedes the appeal in that he agrees that the magistrates' court did not call the vendor to give evidence as directed by the High Court.

Accordingly, the appeal is allowed and the case is remitted to the magistrates' court for retrial to determine the boundary, bearing in mind the directions of the High Court in HCLA 46/91 mentioned above.

THE HON R B LUSSICK
Chief Justice
(09/06/97)

TEKAIE TENANORA
Magistrate
(09/06/97)

BETERO KAITANGARE
Magistrate
(09/06/97)